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When Prenups Attack

It’s possible to break that premarital agreement—DuJour finds the loopholes

Just how fraught is the whole issue of  prenups? Ask George Darren (not his real name) a prominent L.A. media executive. Darren loves his second wife very, very much. Only she is not his wife, despite the lavish Beverly Hills wedding. Virtually no one knows the truth—not friends, family, coworkers or children. The only people who know are their attorney and the one close friend who faux-married them. And why?  

“My first marriage lasted four years and did not involve children, yet I lost one-third of all I worked for my entire life,” says Darren, 57, who came from a working-class family. “And I mean everything—a third of my house that she’d always signed quit-claims on, half of my retirement account. She even went after my frequent-flier miles. If she had taken the amount I wanted to settle for, she would have gotten the same as what she eventually did. But instead, she insisted I was hiding money, so hundreds of thousands went to attorneys and forensic accountants.”  

Darren’s new wife, who has three children and a prestigious academic career that nevertheless pays a fraction of what he earns, also had a terrible divorce: She had to pay alimony to her deadbeat ex. Yet she felt hurt by Darren’s insistence on the prenup. Life is too full of unknowns, she feels, to draw up a hard-and-fast contract like this. She’d rather rely on love and good faith. And so it stands, four years after their beautiful ceremony, that they are still not legally bound.  

Given the current state of marriage, with divorce rates high as ever, it’s hard not to have sympathy for both points of view. He didn’t feel safe without a prenup; she didn’t feel safe with one. 

Prenups (and their malcontents) have been much in the news lately. There’s the story of Ken and Anne Dias Griffin, the wealthiest couple in Illinois. After Griffin, the CEO of Citadel hedge fund, who is worth an estimated $5.5 billion, blindsided his wife of 11 years with a request for a divorce, Dias Griffin—herself a wealthy and accomplished businesswoman currently worth about $50 million—has been trying to get her prenuptial agreement dissolved. Perhaps she is looking for inspiration in Sue Ann Arnall, ex-wife of Harold Hamm, the CEO of Continental Resources in Oklahoma. In January, with much media fanfare, Arnall rejected her ex-husband’s handwritten check for $975 million, saying it was far below what she, as a wife without a prenup, was owed after 26 years of marriage. (She relented after several days, but will still appeal the divorce case.)

Harold Hamm, possessing an estimated $10 billion oil fortune, wrote a check of almost $1 billion to Sue Ann Arnall, his prenup-free wife of 26 years. At first she rejected it.

Harold Hamm, possessing an estimated $10 billion oil fortune, wrote a check of almost $1 billion to Sue Ann Arnall, his prenup-free wife of 26 years. At first she rejected it.

These headline-making stories highlight an issue that’s of some concern even to those who are not in the one percent of the one percent: When can prenups, seemingly ironclad legal documents, be broken? Right now, only about three percent of all Americans have such agreements, but the overall number increased by 73 percent between 2006 and 2011, according to the American Academy of Matrimonial Lawyers. And it’s not just the uber-wealthy who are getting them. Notes Byron Divins of Divins and Divins, P.C., whose Long Island practice does not have a particularly wealthy clientele, “A prenup can be just as bitterly disputed if the assets are not millions but maybe a few hundred thousand and the dog.”

“The problem with prenups as I see them is you can’t anticipate everything,” says Ellie Wertheim, a New York attorney whose distaste for the acrimony of divorce led her to give up litigating and specialize in mediation. “So, what happens if you waive spousal support and then get sick or have a profoundly disabled child or need to care for a parent? Or you lose a job? The divorce actually happens, but the parties’ lives have deviated.”  

NEXT: The 4 circumstances in which your prenup may be challengeable

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