Arnold Schwarzenegger and Maria Shriver are divorcing. Is their prenuptial agreement still valid?

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May 18 2011 6:30 PM

Conan the Divorcer

Has Arnold Schwarzenegger's prenuptial agreement expired?

California Governor Arnold Schwarzenegger and his wife Maria Shriver in 2009. Click image to expand.
Arnold Schwarzenegger and Maria Shriver

Arnold Schwarzenegger's marriage to Maria Shriver seems to be over after news broke that he fathered a child out of wedlock more than a decade ago. The couple are likely to have a prenuptial agreement, according to TMZ, but they've "been together so long the effectiveness of it is problematic." If enough time passes, can a prenup expire?

Yes. A couple can include almost whatever they want in a prenuptial agreement, including the details of its expiration. These sorts of provisions are used to deter gold diggers without making the richer spouse look uncommitted to the marriage. Former General Electric boss Jack Welch wrote a 10-year expiration into his prenup with Jane Beasley. (Their marriage ended 13 years later, after Welch's affair with a younger woman became public. Beasley walked away with $100 million rather than the $15 million maximum in the agreement.) Other contracts increase the severance package for the lesser-endowed spouse by a certain amount every year. Since both Schwarzenegger and Shriver were wealthy at the time of their wedding, it's unlikely they would have included either clause in their prenuptial agreement. (That is, assuming such an agreement exists.) In the absence of an explicit time-linked provision, the passage of years doesn't, per se, impact a well-drafted premarital contract.

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There are some circumstances under which a prenuptial agreement can  lose its force as the years go by. If one spouse prospers disproportionately during the marriage, for example, California courts may ignore any anti-alimony provisions that would leave the other a relative pauper. Upholding such an agreement would be "unconscionable," in legal lingo, even if the provision seemed equitable on the wedding day.

While the tabloids are screaming with Arnold's love child confession, his indiscretion shouldn't affect the prenup. Courts usually don't enforce provisions that cut a spouse out of the assets for infidelity, or for any other misbehavior. Nevertheless, divorce attorneys claim that cheating affects judges' rulings, whether they'll admit to it or not.

Keep in mind that very little is certain with premarital agreements, because American judges have historically looked for reasons to ignore them. Until the 1970s, in fact, courts made a point of disregarding prenups because they interfered with government authority. Marriage isn't a private contract, they argued, but rather a creature of the state. The government sets the terms of its formation and dissolution, and the parties shouldn't be able to alter them by private agreement.

Even after this theory lost favor, many judges found other reasons to tear up premarital agreements. The most common objection was that they made divorce too easy, or in some cases too attractive. In a 1985 California case, for example, the judge tossed out a prenup that gave the wife the house and a minimum of $500,000 after just seven months of marriage. The court noted that the contract encouraged the wife to seek a divorce "with all deliberate speed." (Judges seem drawn to that phrase. It's infamous in the legal world as the pace at which the Supreme Court futilely ordered the South to desegregate.)

Prenuptial agreements are now common, and many states have adopted a uniform code to govern their implementation. But their enforcement remains unpredictable, and judges regularly strike down draconian provisions even when it's clear that both parties fully understood them. Smart attorneys increase their chances of success by making sure the terms are crystal clear and the opposing spouse has an independent lawyer from the start.

Got a question about today's news? Ask the Explainer.

Explainer thanks Brian Bix of the University of Minnesota Law School.

Brian Palmer writes about science, medicine, and the environment for Slate and Earthwire. Email him at explainerbrian@gmail.com. Follow him on Twitter.

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