The Donald says, "get a prenup!" The Supremes say. "be fair."
Attention trophy spouse-seekers and gold-diggers: You can't make your prenup too unfair, says the


Supremes: If You're Going To Make an Unfair Prenup, at Least Be Fair About It

The Donald says, "get a prenup!" The Supremes say. "be fair."
Attention trophy spouse-seekers and gold-diggers: You can't make your prenup too unfair, says the state Supreme Court. And if you do, you can't be unfair in negotiating it. In a decision it issued this morning, the court upheld the nullification of a prenup between a Seattle-area couple.

Thomas Bernard went into the marriage with a net worth of $25 million, while his employee Gloria Bernard went in with a net worth of $8,000. According to the court, Thomas provided Gloria with a last-minute prenup and said he wouldn't marry her if she didn't sign it. Her lawyer told her not to sign it, but she signed it, and she and Thomas got married at the Seattle Tennis Club, agreeing to renegotiate parts of it later. Even after renegotiations, the prenup barred her from receiving any inheritance and prevented her from having any stake in any money he made during their marriage, as well as from being reimbursed for her contributions to his earnings. But Washington is a community property state, meaning anything you earn during the marriage automatically becomes property of your spouse as well.

Thomas argued that the marriage didn't last long enough for him to make any money, but the court says that's not the test, and that he forgot about the money he made by keeping his mind on his money (and his money on his mind):

Thomas argues that because this was a short-term marriage there was no time to accumulate community property. He urges us to alter our analysis and evaluate substantive fairness at the time of enforcement, as opposed to at the time of execution, of an agreement. We refuse. To do so would change the test from one of fairness to fortuity...Moreover, Thomas's substantial labor in managing his separate assets produced revenue that is considered community property. Thus, the premise of Thomas's argument is incorrect; community property accumulated during the marriage.

Since the agreement was so unfair, it had to be negotiated fairly to be legitimate, and the court says it wasn't. So now a trial judge will decide how much of the couple's money Gloria gets to keep.

There were three dissenting Justices: Richard Sanders, James Johnson, and Mary Fairhurst. In an opinion penned by Sanders, they concede that the agreement was unfair, but argue that Gloria said nothing to indicate she felt she was being rushed at the time she signed it. They add that the negotiations were fair, especially in light of the renegotiations after the wedding. The majority opinion, they point out, argues that it was unfair for the renegotiations to be limited to a few areas, but Sanders and Johnson note that Thomas was able to insert new terms--unrelated to those areas--that were favorable to him:

Gloria and her attorney should have realized that if Thomas amended the prenuptial agreement to contain a matter outside of the terms of the "side letter," then Gloria could have done so as well. That is what a fair-minded person would have surmised.

One interesting note, especially as this case involves the rights of consenting adults to enter into agreements of their choice, is that the dissenters were the most vocal justices on the gay marrage debate--and found themselves on opposite sides. In Andersen v. King County, the case in which the majority said that Washington's Defense of Marriage Act is legit because one can rationally believe it encourages breeding, which is "necessary to the survival of the human race". Fairhurst wrote a strongly worded dissent in favor of gay marriage, while Sanders and Johnson wrote a separate concurrence (pdf) that went out of its way to trash the notion.

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