Family Law Blog - John C. Mayoue Family Law Files: May 2006

If anything good can come from the breakup of Paul McCartney's marriage to Heather Mills, it is that more people in Britain will start thinking about something many Americans have already considered - a prenuptial agreement.

I am a big proponent of pre-nups, but not for the reason you might think. I believe prenuptial agreements (and their cousins, post-nuptials) can create a stronger marriage because they force couples to take a mature look at their new financial and legal relationship.

Sir Paul, it has been reported, was offered a pre-nuptial agreement before his marriage to Ms. Mills - in fact, some reports have said that his children insisted on his signing one, but the former Beatle declined. Some people believe the lack of a pre-nup could entitle Lady McCartney to half of Sir Paul's pounds 825 million estate (that's over $1 billion in U.S. dollars), but that isn't true. She's legally entitled to a share of the marital estate created during their four-year marriage. Since most of that would have been created by Sir Paul's artistic endeavors, her share is expected to something less than half.

Even if Sir Paul had signed such an agreement, pre-nuptial agreements are not legally binding in the United Kingdom; judges may or may not decide to honor their content depending on the couple's situation, the interests of any children and the grounds on which the divorce is to be granted.

Still, the speculation and discussion on whether Sir Paul should have taken this step has got a lot of people thinking about pre-nups. In fact, they had been thinking about them beforehand. According to the Manchester Evening News, some 300,000 couples in the United Kingdom will get married over the summer. In Leeds alone, one law firm has seen a rise in pre-nups during the past year.

Does that mean that more couples in Britain are getting cynical? That they expect to get divorced?

Not at all. I think it means that more and more people in Britain want to control their own finances and make decisions on how their wealth should be distributed, not only in the event of a divorce, but also in case a spouse dies or the couple's financial situation dramatically changes (for better or worse) during the marriage.

Just as in the United States, it is ultimately the law - and that means a judge - who will decide which property belongs to each spouse alone and which of their property is commingled into the marital estate. While the couple may have a clear idea as to which is which, the judge may not share their opinion.

In the U.S., many people marry later in life, after they have accumulated considerable personal property, either through purchases or inheritance. If that property is mixed into the marital estate, then it is subject to division according to the law of whatever state in which the couple were married. When the marriage ends, the estate will be divided - but a marriage doesn't always end in divorce.

If one spouse dies, then the law will control what is and isn't personal property. A spouse who has inherited an ancestral home may intend that home bequeathed to his family; yet the family may lose that home if the surviving spouse has an interest in it through the marital estate. A pre-nuptial agreement could protect the family's interest.

I have found that many couples realize that their marriage is not only a romantic union, but also a legal relationship. It only makes sense to realize the legal and financial implications of a marriage and to take prudent steps to prevent a future adverse legal ruling. The rise of prenuptial agreements in the U.S. reflects, I think, a growing acceptance of this fact of life.

Apparently the same kind of realization is taking hold in other parts of the world, especially in the U.K. There have been several proposals of late to make such agreements legally binding, but no one can say when that would be.

Here in the U.S., acceptance came slowly but surely. As more and more courts came to accept them, eventually there came a consensus among judicial jurisdictions as to what conditions and protections should be built into pre-nups. I think the pattern in the U.K. will be basically the same; after all, our legal system is based on theirs.

Should that happen, I think that more people will be entering marriage with an advantage, since they would have already settled many of the financial issues that otherwise might lay dormant, ready to explode at any of the rocky moments any marriage can have.

A unanimous U.S. Supreme Court on Monday said that Anna Nicole Smith - former Playboy model, actress and all-around celebrity - can continue her battle for a share of the estate of her late, nonagenarian husband, settling a turf battle which had enveloped the courts of the sovereign state of Texas and the United States.

What the ruling means, according to legal analysts, is that Miss Smith (known in court documents as Vickie Lynn Marshall) will now get another chance to get a share of the millions she claims is hers; money that the son of tycoon J. Howard Marshall has been working for almost a decade to keep from her .

This whole case has received more publicity than it deserves, starting back in February when Anna Nicole attended the oral argument of the case. Although the U.S. Supreme Court is no stranger to cameras and crowds, the cases that mostly get attention involve issues of great social consequence, like abortion or prisoner rights. But when Anna Nicole showed up for her Constitutionally guaranteed day in court, the plaza around the venerable court building was swarming with celebrity seekers and Hollywood paparazzi, most of whom probably had no idea where the court building is, so used are they to hanging outside swanky Hollywood hotels and restaurants.

The publicity may not be deserved, but the legal issue at the core of the case is interesting - to what degree, if any, should federal courts become involved in probate matters? Although none of the media coverage of this case has looked at this issue (mostly the coverage has focused on the battle between Marshall's heirs) the court's ruling is worthy of some attention. As it turns out, the federal courts can overrule a state probate court's jurisdiction in extreme cases - and this case was one of those extremes.

When Anna was 26, she married the 89-year-old Mr. Marshall, whom she had met in the very romantic setting of the strip club at which Anna then worked. Although some people seem to doubt her, Anna has always claimed the relationship to be affectionate and nurturing; not the stereotypical union of golddigger and gold-diggee. However, the marriage was short and when Marshall went to his reward, Anna was left unrewarded for her affections in Marshall's will, which left the bulk of the Texas oilman's $1.6 billion estate to his son, E. Pierce Marshall. Anna claimed, however, that Marshall had intended to provide for her with a catch-all trust and both Pierce and his young step-mother exchanged nasty comments that found their way into the newspapers.

While Marshall's will was tied up in Texas probate courts, Anna Nicole - now living in California - filed for bankruptcy. Pierce involved himself in those procedings, accusing Anna Nicole of defeaming him with public accusations that he had resorted to forgery, fraud and other shenanigans to separate her from his father's money. Eventually, the bankruptcy court sided with Anna Nicole, awarding her $475 in compensatory and punitive damages; an amount later reduced the award to a total to about $44 million (plus an equal amount in punitive damages) by a federal district court.

But when the case made its way to the Ninth U.S. Circuit Court of Appeals, the appellate court overturned the lower courts' ruling, saying that the proper place for the case to be decided was in the state probate court. That court, by the way, had ruled in March 2001 that Anna Nicole was entitled to nothing.

In her majority opinion, Justice Ruth Bader Ginsburg acknowledged that the "probate exception" generally gives state probate courts sovereign authority to oversee wills and the administration of estates. However, Justice Ginsberg wrote, this case was different because of Anna Nicole's claim that Pierce had wronged her by trying to cheat her out of the old man's estate.

That kind of dispute, Justice Ginsburg said, better belongs in a federal or state trial court, since probate courts possess "no special proficiency" in handling issues like the ones raised here. So, the case is headed back to a federal court, where Anna Nicole has already provided evidence that her allegations of fraud are valid. Given the history of this long-lived case, however, the only thing we can be sure of is that the final resolution may be months, if not years, in coming.