Everyone is talking about prenups as if they’re some magical document that can prevent your spouse from taking everything—including the crumbs even too small for a mouse. But anyone who’s actually been through a divorce with a prenup knows that it’s simply not possible for one party to take everything and leave the other party absolutely destitute. Scooter Braun, a talent manager and executive producer, can tell you this from first hand experience: after filing for divorce in 2021, Braun was recently ordered to pay his ex $20 million dollars and $60,000 in child support. This leaves many people wondering why anyone should bother with a prenuptial agreement or a postnuptial agreement.
What Does a Prenup Even Do?
A prenuptial agreement, better known as a “prenup,” is an agreement that’s signed before the marriage. A prenuptial agreement is signed in order to protect the premarital assets of each party. It is not intended to bankrupt one party, or leave one party destitute, in the event of divorce. A postnup, or post nuptial agreement, is signed for the same reason. However, a postnuptial agreement is signed after the wedding. Although postnuptial agreements generally protect premarital assets, they can also protect marital assets. It’s not uncommon for a person to sign a postnuptial agreement when their marriage is at a decline. This can reduce the likelihood of a high-conflict divorce if the marriage does indeed end.
Marital, Premarital, and Commingled
A premarital asset is any asset that a person had before the marriage. Let’s say you buy a house before you’re married. Then, seven years later, the marriage ends. Who gets the house? Well, in the most simple terms, you’d probably get the house—assuming the house was paid off before the wedding. This is because the house is a premarital asset, or something that you bought before you were married. A marital asset is anything that is accrued during the marriage. Let’s say you earn a paycheck while you’re married. The money that you earn from your job is a marital asset, even if you have separate checking accounts. And assets can be “commingled” too. So let’s say you bought that house before you were married, but you used marital assets—like money from your job—to pay the mortgage. Since you’ve used marital assets to pay for the house, the house has become commingled, meaning that your spouse may have some claim to the house.
How Does a Prenuptial Agreement Work?
In most cases, a prenuptial agreement will protect premarital assets. A lot of people choose to get prenups in cases where both parties have a high earning capacity. Let’s say your spouse owns a start-up company that’s only worth $5,000 before the wedding. But by the time you and your spouse divorce, the company’s worth $5 million dollars. Your spouse can’t necessarily say that the company is a premarital asset and you’re not entitled to any of it. This is because only $5,000 of it is a premarital asset. The rest of the company’s worth is probably going to be considered a marital asset. In the aforementioned case, a prenuptial agreement can help mitigate the loss of the company. It may also mitigate alimony or dictate the division of large assets. Notice that “mitigated” is bolded: prenups mitigate loss; they don’t prevent it.
“Can I Make Sure She Doesn’t Get Anything?”
If a prenup isn’t equitable, it can be thrown out or challenged. A lot of people are actually surprised to learn that they cannot just draft up a document that says, “in the event of a divorce, I don’t have to give my spouse a dime.” As previously mentioned, a prenup can mitigate your loss, but it can’t entirely prevent your loss. There is no one-size prenuptial agreement; the terms and the language used are going to vary from couple to couple. A prenup can protect an asset that appreciates in value, such as a business. Or, let’s say your spouse is planning on taking out a bunch of student loans to get a graduate degree after the wedding. A prenup can protect you from your spouse’s debt too.
Do You Need a Prenup?
A lot of people are wondering whether or not they should get a prenup. In most cases, a prenup is only necessary if you or your spouse have something to protect. For example, if you’re both in your early 20’s, and you’re getting married, you probably don’t have many assets to fight over. But if you’re both 65 and getting married, you’ve likely amassed a ton of assets, and getting them back after divorce may be difficult to do. In the latter scenario, a prenup would be a good idea. In the case of Scooter Braun and Yael Cohen Braun, both individuals likely had a lot of assets before the marriage and protecting those assets would have been important for both of them. Though Scooter did end up paying $20 million to Yael, he also managed to keep their $65 million dollar home and their private jet.