A husband and wife prenuptial agreement papers on a white sofa.

Well-Drafted Prenuptial Agreement: Lessons from Tom & Giselle

How did former New England Patriots quarterback Tom Brady and supermodel Gisele Bündchen keep news of their divorce quiet? It’s hard to know for sure, but a well-drafted prenuptial agreement is often the key element of a quick, discreet, and amicable divorce.

Brady and Bündchen are media darlings; however, by the time the superstars confirmed their marital problems, their divorce had already been granted. The high-profile couple managed to keep the dissolution of their marriage largely out of the headlines and free of public drama. In fact, The Boston Globe’s breaking news on the split was decidedly unsensational. The headline read simply, “Tom Brady, Gisele Bundchen announce divorce after 13 years of marriage.”

Since Brady and Bündchen married after each had separately built their public careers – and amassed some of their fortunes – it is highly likely that they had a strong prenuptial agreement and experienced legal counsel.

A prenuptial agreement can be cynically thought of as a way to avoid – or gain –  a big payout in the event of a divorce, but in reality the headline-grabbing gold-diggers are rare. The very practical reasons for a well-drafted prenuptial agreement go far beyond payment. Personal privacy and protection may be even more important to high-net-worth and high-profile individuals who don’t want their names dragged through the mud in the event of a divorce.

But you don’t have to be a football star and a model, or even someone who has amassed a vast fortune, to want to protect your assets and maintain your privacy.

Here are four elements of a well-designed prenuptial agreement:

The prenuptial agreement is fair, reasonable, and includes full disclosure of all income assets and liabilities. The contents of a prenuptial agreement should be based on honest conversations. While a marriage is ideally based on love, it is important to remember that it is first and foremost a legal agreement. Being fully candid about the income, assets and liabilities each person brings into the relationship, thoroughly outlining what is a separate asset and what is a marital asset, and being open to discussion and negotiation is critical to establishing trust and drafting a fair agreement. Drafting an agreement like this requires experience and a delicate touch.

The details are agreed to, well in advance of the wedding. Above all, a prenuptial agreement is a framework to avoid future conflict and misunderstandings. Just as it takes months to plan a flawless wedding, writing a fair and well-drafted prenuptial agreement also takes time. Each person should have ample time to review all the details well in advance of the big day and there should be no surprises for either party entering into the marriage.

Each person has their own representation. A marriage is a union of hearts, minds, and lives. Even so, two people do not actually become one. In fact, many couples keep separate bank accounts and retain different last names. Likewise, it is important to remember that each individual has separate interests when developing an antenuptial agreement. For that reason, each person should have their own counsel to ensure their own best interests are represented. Whether one individual has accumulated or inherited wealth on their own, or if two independently wealthy people come together, it is imperative that they each have experienced legal representation and the contracts are drawn up and negotiated in detail, with care and compassion.

Every prenuptial agreement, if enforcement is required, goes through a Second Look Analysis. In order for a prenuptial agreement to be enforceable in Massachusetts, it must be fair and reasonable at two times of analysis. First, it must be fair and reasonable at the time it was executed before the marriage; and second, it must be fair and reasonable at the time of divorce when it is requested to be enforced. To determine whether or not the agreement is fair and reasonable at the time of enforcement, a Court will take a “second look” to be sure enforcement of the prenuptial agreement will not be unconscionable. 

If warranted, bring in the extended team. In the case of a high-profile individual or someone in the public eye, no matter their wealth, it may be advisable to bring an extended team into the drafting of the prenuptial agreement. For example, business owners or inventors might want their business attorney to ensure those assets or intellectual properties are protected. Similarly, someone with a public persona may want their public relations firm to review the fine print. Anyone who advises an individual in their business lives should also be part of the premarital legal discussions.

You and your future spouse may not be known by only your first names like Tom and Gisele. But you still want to ensure that your assets – and reputations – are protected and details remain private should the marriage dissolve. A strong, well-drafted, legally executed prenuptial agreement can go a long way to protecting yourselves and preserving your privacy.

We understand that negotiations for prenuptial agreements are delicate, no matter your wealth or public persona. The finesse of a skilled attorney can make the process a lot smoother. You’ll find experience, expertise and compassion at Sassoon Cymrot Law, LLC. Contact us today.

Nicholas A. Iannuzzi, Jr. is a Partner at Sassoon Cymrot Law, where he concentrates his practice in Family Law. Attorney Iannuzzi has 27 years of experience handling Family Law matters including divorce, custody, paternity, child support, alimony, restraining orders, removal, modification and contempt actions.
Sheila Barresi focuses her practice on Family Law. Sheila has over 20 years of experience handling Family Law matters, including divorce, custody, custody and visitation rights, real estate valuation, domestic violence, and challenges to the validity of prenuptial agreements. Paternity, child support, alimony, removal, modifications and contempt. Sheila also works with families on the probate of estates.

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