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What would Melania get if she divorced Donald Trump?

Corynne Cirilli from Town and Country magazine recently asked some high profile New York divorce lawyers what the First Lady would be entitled to if their relationship ended. Trump is famous for demanding pre-nups from his former wives but Melania may be in the box seat when it comes to challenging hers.

Eavesdrop on a steakhouse lunch between divorce attorneys and you’re likely to hear them engaging in their current favorite sport: speculating on the marital arrangement between Donald and Melania Trump. “We love talking about it,” one recently told me. “What’s in the pre-nup? Did it get renegotiated during the campaign, or after he won? How would a split play out?… It’s irresistible conversational fodder.”

During his two previous divorces, Trump stuck mostly to the pre-nup; although Ivana Trump contested it, she reportedly got $14 million, a New York apartment, a Connecticut mansion, and Mar-a-Lago once a year, as well as $650,000 annually for alimony and child support.
[Below- Trump and first wife Ivana]

Marla Maples contested hers, too, and is said to have been awarded around $2 million.

But now that the stakes are higher, we asked a few of the country’s top matrimonial lawyers for their take on what could happen if the first couple were to split.

T&C: HOW IS THE TRUMP PRENUPTIAL AGREEMENT MOST LIKELY STRUCTURED?
Thomas Kretchmar, associate, Chemtob Moss & Forman: I can’t speak to them directly, but in a New York high-net-worth marriage, a pre-nup is primarily designed to protect what is already owned prior to the marriage, versus things that may be accumulated moving forward.

Peter Stambleck, partner, Aronson Mayefsky & Sloan: What I would have recommended to them is a title controls pre-nup. It makes it very clear that, in the event of divorce, everything in his name will be his and everything in her name will be hers.
What would his main concerns have been when structuring the pre-nup?

Stambleck: Billionaires have complicated asset structures. They have shell companies, LLCs, investments in other companies, and it’s very, very complicated. One main purpose of a pre-nup is to avoid having to share in that, but also to avoid the headache that goes into producing all the documents and having accountants come in and look at all of it. Theoretically, that’s what could happen in the absence of a pre-nup.

T&C: HOW WOULD THEY DIVIDE ASSETS- REAL ESTATE, ART, OR JEWELLERY?
Jacqueline Newman, managing partner, Berkman Bottger Newman & Rodd: My guess is real estate will be involved. Obviously, he has the apartment in the city that was his before the marriage, and I can pretty much guarantee he’s not giving it to her. But in situations where I’ve dealt with very high-income, high-asset cases, the moneyed spouse will purchase an apartment for the non-moneyed spouse and the children to live in.

Stambleck: And usually any personal property that directly relates to that person stays with him or her. There’s no question, for instance, that her jewellery will be hers, not his.

T&C: WHAT ABOUT THEIR 11-YEAR-OLD SON, BARRON?
Newman: It’s handled by the courts. Given what I’ve read in the tabloids, it doesn’t seem as if there’s going to be much question as to who the primary caretaker is. My guess is that she would get primary custodial rights and he would get access whenever he happens to be in town.

How much money is she likely to get?
Newman: In this situation, if she has $50 million, she can afford to buy something. But $50 million, while it’s definitely a lot of money, in New York City, for what she’s used to, she wouldn’t be able to replicate what she has now. He probably had a good sense of what kind of lifestyle they’d be living, so I would imagine the payout would be fairly generous.

T&C: WOULD HE HAVE AGREED TO MAINTAIN HER LIFESTYLE?

Stambleck: Can he put in a pre-nup that she’ll have access to the Mar-a-Lago residence for a month in December? Yes, you can literally put anything in the pre-nup. He could say that on 72-hour notice she’ll have use of the plane.

T&C: COULD SHE NOW CHALLENGE THE PRENUP TO ANGLE FOR MORE?
Stambleck: It’s unusual. One of the main reasons to enter into a pre-nup is that, in addition to protecting the wealth, you’re also trying to make it clean—and stay out of the press. In the state of New York, it’s a very high hurdle to try to get a prenuptial agreement overturned.

Kretchmar: An interesting issue with prenups in New York City, which is within a jurisdiction where it’s really very difficult to invalidate a properly prepared, properly entered-into prenuptial agreement, is that it is not unusual to see the non-moneyed spouse still getting a little more in the settlement than the pre-nup entitled him or her to. The non-moneyed spouse may believe that just the idea of challenging the agreement will strike enough fear, stress, and overall agitation into the moneyed spouse—in terms of not wanting to be in the courts, not wanting to be in the gossip pages— that he or she may be willing to pay a little more just to make it go away.

T&C: WHEN TRUMP RAN FOR AND THEN BECAME PRESIDENT, MELANIA’S SITUATION CHANGED. DOESN’T SHE HAVE A LOT MORE LEVERAGE NOW THAT IT’S SO IMPORTANT THAT THE MARRIAGE DOESN’T FALL APART? MIGHT SHE HAVE RENEGOTIATED THE PRENUP?
Kretchmar: Without speculating on any particular case, it’s certainly true that spouses can, during their marriage, modify the terms of an existing prenuptial agreement in response to a material event. is is done in a document called a postnuptial agreement. Sometimes post-nups are used as a stopgap to an eventual divorce. Other times they are genuinely just a revision or refinement of existing rights in light of a change in the spouses’ circumstances.

Newman: It’s very hard to overturn a prenup in New York. The only thing that she could possibly try to argue—and I’m not sure it would succeed—is that when she entered into the agreement she didn’t anticipate he would be president (assuming it was not discussed as a possibility at that time). Therefore, in terms of any spousal support waiver, it would not be fair and reasonable for her to waive spousal support at this time, because there are now more anticipated expenses that she will incur being first lady, especially if she divorces him when he is in office.

This story appeared in a recent issue of Town & Country.

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Family Law

All about prenups…and other financial agreements

vintage-pre-nup

A wealthy couple celebrates their new marriage circa 1914

What exactly is a Pre-Nup?

Australian couples can plan for their future rights (and responsibilities) with a binding financial agreement. Once something is binding it is difficult, although not impossible, to change or overturn it.

Check out HERE what Aussie law says about these agreements and when they are binding.


A financial agreement is basically a contract which you and your partner make. If you are in a de facto relationship, you can make it at the beginning of your relationship or at any time during the relationship.

Marrying couples use to call these agreements “pre-nups” because they were made before the start of a marriage. These days both soon to be married, married and de facto couples can make theses agreements at any time in their relationship that suits them.
These agreements take into consideration a range of issues outlined in the Family Law Act like:

  • How in the event of a relationship breakdown, all or any of the property or financial resources of either or both of the parties is to be dealt with.
  • The maintenance of either party during the relationship and/or after dissolution of the marriage or the end of a de facto relationship.
  • Any incidental, ancillary or other matters to those above.

Cohabitation agreements or de facto agreements, that confirm a person’s non-financial and financial rights when the de facto relationship comes to an end, are also recognised.

How do you create a Pre-Nup or binding financial agreement?

♦ You cannot get the same lawyer to act for both of you with financial agreements.
♦ You will each need your own lawyers to give legal advice about the effect of any potential agreement on your future rights (particularly in any future property settlement if your marriage or relationship breaks down) and about any disadvantages in making such an agreement.
♦ The agreement won’t be valid if you don’t get this advice.

♦ Either before or after signing the agreement, each party is to be provided with a signed statement by the legal practitioner stating that the advice was provided to that party.

♦ A copy of that statement is then given to your partner or their lawyer.

♦ Both of your lawyers will need to take detailed instructions about your financial circumstances, future intentions (eg regarding children), contributions already made to the property, estate planning requirements (eg protection of children from other relationships) and the financial agreement you both wish to enter. In disclosing all of your assets and liabilities, valuations are normally obtained and accountants are often used to make sure things add up

♦ Your lawyers must provide each of you with a detailed letter of advice, so you understand what such an agreement means and that it is binding.
♦ The agreement is then drawn and negotiated between the two of you to iron out any concerns.
 When settled, the agreement is signed by the parties.

Good agreements mean preparation, preparation, preparation

Both Before you can make your agreement, your lawyer will need detailed information about:

♥ Your assets, liabilities, businesses, trusts, superannuation/pension entitlements etc (and you need to be honest and not hide or leave out details) by providing statements and valuations. Where this isn’t possible it’s important to give a fair estimate of the value of any other things.

♥ Details of your employer, salary and entitlements. It is important to provide tax returns to prove this.

♥ Your personal details (including your previous marital status, details of any children).

♥ You and your future spouse or partner’s intentions about the division of your property if you separate. It’s also sensible for any agreement to provide an additional settlement for any financially disadvantaged party. (eg. the partner who may have no income)


It is simple common sense if you want a strong financial agreement to avoid being mean spirited. Make reasonable provision for your partner if you have greater wealth by sitting down and negotiating this with them. Each of you should also assess what’s offered with your lawyer so you can have a non-emotional mind overseeing any negotiations.

But doesn’t it take the romance out of the relationship?

While this may seem unromantic, making a financial agreement promotes trust, certainty and transparency about financial matters between both of you. It can actually be part of a plan for a successful marriage or de facto relationship. The agreement provides a reference point for both of you and reduces the chance of disputes arising about financial matters during the relationship.

Many couples consider that this sort of agreement gives them real peace of mind by clearing the air over what can sometimes be a sensitive topic to discuss.

vintage gay couple 2Cost

Financial agreements often require much research, detail, checking and confirming and reconfirming with each party, so they are not easy things to construct. Make sure you both find lawyers with skills in this area and ensure you leave enough time to get the agreement drawn up and agreed to. One lawyer in this field has advised that they can start at $5000, and if they’re really complex agreements, it could be more than twice that. The more complex the agreement the more you should ask your solicitor to get a Barrister with experience in this area to double check the agreement.

Also, if you’re getting married, it’s best to start the process at least 6 weeks before the wedding.
For de facto couples, you should get your financial agreement done as early as possible.

Financial agreements can be changed as your relationship changes

Think of your financial agreement as an evolving document. It may begin as a ‘pre-nup’ but it can be changed and updated if the dynamics change. Good examples are if you have children, or if either or both of you become wealthier. Changes in circumstances such as hard times or sickness may require the agreement to be revised.

Talk to your lawyers about having a revision clause in your agreement so that from time to time you can review and change it to more suit your circumstances. It’s important that the agreement remains fair and reasonable. Again, for more complex agreements any changes should be also looked over by a Barrister with experience in this area.

Can a Pre-Nup or financial agreement be overturned?

You cannot be provided with a cast-iron guarantee that your agreement, once entered, will not be subsequently set aside by the Family Court.

The only way a court can make orders for property settlement and spousal maintenance despite an agreement is if the court sets aside the agreement. The law has a number of grounds to set aside an agreement.

Click HERE to see what the law says on this

In summary, the main grounds are:

♦ An agreement was obtained by fraud. For example, one spouse fails to disclose a matter material to the agreement such as ownership of assets / businesses.

♦ One or both of you entered into the agreement for the purpose of defrauding or defeating a creditor of either of you. This means that you can’t use a binding agreement to divert assets away from creditors, or a trustee in bankruptcy.

♦ The agreement is void, voidable or unenforceable. For example, the requirements for a binding agreement were not fulfilled and these are complicated which is why you both should consult with a lawyer to get everything right in the eyes of the law.

♦ Since the agreement was made, a material change in circumstances that relate to the care, welfare and development of a child of the marriage has occurred.  As a result of the change, the person who has caring responsibility for that child, will suffer hardship if the agreement is not set aside.

♦ The agreement was signed because of pressure, harassment or some other form of unfair conduct (eg ‘gunshot signings’ of an agreement on your wedding day).

wedding money prenup

Money is ever present at weddings, Italian wedding circa 1952

Future changes to the law about financial agreements

Financial agreements are out-of-court, private agreements between the two of you outlining how property and other financial matters will be dealt with in the event of the breakdown of a marriage or de facto relationship. It’s always disappointing when Courts get involved due to uncertainty.  The downside of this is delays and added cost for both parties.

The Legal Eagle will keep you updated on whether any new laws are passed changing the current status.

Updated May, 2019

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Family Law

Family Law – The Big Questions

vintage-family-photos-7

 

This is the FAMILY LAW section of The Legal Eagle

I imagine you’re here because you’re a little anxious about something to do with your relationship or your marriage, and you want some easy to understand information about what direction you should head in, and your rights under the law in Australia.

Take a look at the questions below and see if they apply to you. Each question has a link to answers and resources that may help you. By the way, whenever I have to mention a ‘legal’ term that sounds like it comes from another planet, I promise it will be explained to you in plain English.

If your question isn’t here just drop me a brief note c/o Facebook Messenger
Please be assured that only our lawyer will see your enquiry.
If you have lots of questions and you would like to spend some quality time on the phone with our senior family lawyer Mark Bradbury,  we offer a low cost service for this which you can book an appointment for HERE

Click the links below to get easy to understand answers

MARRIAGE AND SEPARATION

I want to save my marriage – What help can I get? 

What are prenups and financial agreements and are they valid?

How do I  legally separate from my spouse?

Can we separate and still live together?

Divorce Court 1948       DIVORCE COURT 1948

What is the process for getting a divorce?

What happens to my kids when I separate or divorce?

What is the best way to make a parenting plan after we separate?

What happens to my home, property, super and pets if I divorce?

When can I get rid of his or her stuff?

DE FACTO RELATIONSHIPS
(Including same sex relationships without marriage)

How do you end a de facto relationship? 

What’s the legal difference between ‘de facto’ and being married?

Can de facto couples have prenup of financial agreements?

What happens to my kids when the relationship ends?

How to make a great parenting plan after separation

What happens to my home, property, super and pets when your relationship ends?

When can I get rid of his or her stuff?

DIY  DIVORCE  AND SELF REPRESENTATION

Is it possible for me to do my divorce paperwork without the need for a lawyer?

The secrets that help to win family law cases

Do dads get a hard time in the family courts?

6 Things to avoid when finding a lawyer

I need low cost legal help so I can DIY my family law matter – Can you help?

CHILD SUPPORT

When am I entitled to child support and how do I get it?

TIPS TO SURVIVING YOUR BREAKUP AND STAYING SANE

Divorce and separation – the survival kit

De-stressing and living post separation

FAMILY VIOLENCE

In the eyes of the law, what is family violence – Where can I get help?

GRANDPARENTS

What rights do grandparents have to see their grandkids? 

SEPARATION AND SOCIAL MEDIA USE

Family Court and Social Media – Avoiding Trouble

 

T H E   L E G A L   E A G L E
Helping people achieve good outcomes… without the big legal bills.
Need help? Make an appointment HERE

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