Legal Mythbusters (Episode 1)

You may be familiar with the TV show “Mythbusters”, in which two movie special effects gurus use science to either confirm or “bust” myths about whether things can actually happen the way they happened in the movies. (Examples: No, you will not sucked get sucked out of airplane if you shoot a bullet hole through the plane, the way James Bond once offed a bad guy; No, if your car is teetering precariously on the edge of a cliff, a bird landing on the hood will not be enough to cause the car to fall off the cliff, like in the movie True Lies; and finally, No, if you shoot a scuba tank with a gun, it will not cause the tank to explode. Sorry, the movie Jaws lied to us). It was a great TV show because it was cool watching these two tech geeks use science and engineering to re-create classic scenes from movies, and it was a fun way to learn basic physics.

I am convinced we need something like this to teach people basic legal principles. (Although I have to admit, it won’t be nearly as entertaining as watching people try to blow up a scuba tank by shooting at it).

I came to this realization this past weekend, while I was hunkered down at home preparing for the storm (which, thankfully, in my area of town turned out to be little more than a heavier-than-usual rain), I did something that I knew better than to do. I read a news article online, and then read (gasp) the comments section of the article.

I should have known (and did know) better. But I did it anyway. The “comments” sections of online news articles are almost always devoid of any cogent thoughts or opinions, and they are usually depressing. They are most often a potpourri of racism, anti-semitism, homophobia, bigotry, stupid ideas, insane conspiracy theories, and name-calling, made even more depressing by the fact that the contributors tend to lack even a 6th grader’s command of basic grammar and punctuation. And every third or fourth word is misspelled. Even the curse words. The news article at issue was not even a “newsworthy” item. It was an “offshoot” of a news story. As most of civilization has now heard, Britney Spears is getting divorced (again), from her husband of less than a year, part time male model/actor Sam Asghari. But this was not the “news” item. The “news” item was the fact that a year ago, when Spears and Asghari were about to tie the knot, Oscar-winning actress Octavia Spencer sent out a “Tweet” advising Spears to make sure she got a “Prenup”. The gist of the news item, and the comments, were congratulating Ms. Spencer for offering such sage advice, for being so prescient. There apparently is a prenuptial agreement in place, and according to many online commenters, it’s a good thing that Ms. Spears was able to get such an agreement, otherwise, Mr. Asghari would get half of all of Ms. Spears’ money and property in the divorce. There were also interesting musings to the effect of “Well, the prenup wouldn’t be valid if she cheated on him!”

No. No. No. That is not at all how it works.

Anyone who is around my age or who grew up in the 80s may be tempted to blame Eddie Murphy for popularizing the myth that when you get a divorce “you lose half your shit”, and that the only way around it is a prenuptial agreement. (A large and hilarious segment of Murphy’s 1987 stand-up comedy film, “Raw”, was devoted to him riffing on his aborted engagement to a woman who refused to enter into a prenuptial agreement with him). But like many myths, this one is actually based on a kernel of truth.

California is one of many “Community Property” states, in which all money and property (with some exceptions) acquired during a marriage is considered the property of the marriage. If the couple later divorces, the community property, which belongs to both parties equally, must therefore be divided. So, if you and your spouse have no assets when you get married, and you later get divorced, yes, it is highly likely you will end up with half of the marital assets.

But there are exceptions, and instances where community property laws do not apply. An exception is money or property you inherit. That belongs solely to you, even if you’re married. And, as most applicable to Britney Spears’ case, money and property that you own prior to the marriage are not considered community property (Of course, you can do things, even inadvertently, to “transmute” separate property into community property).

As of 2021, Britney Spears’ net worth was estimated by Forbes magazine to be in the neighborhood of $60,000,000.00. All of that was earned before her marriage to Asghari. So the idea that Britney Spears somehow needed a prenuptial agreement to avoid losing half of that pre-marriage fortune is simply a ridiculous legal myth.

The way a prenuptial agreement may have, in theory, benefitted Spears would be if the agreement included a provision that Ms. Spears’ earnings, while married, constituted her separate property. A couple can “contract out” of the community property system, and I suspect that the prenuptial agreement in this case includes such a provision. However, my understanding is that Ms. Spears has not released any new music our toured since getting married to Asghari, and I don’t believe that any earnings/royalties from any music or performances that occurred before the marriage would be considered community property. So, even if Spears and Asghari have not “contracted out” of community property in a prenup, he still would not be entitled to the vast majority of her assets.

It is even possible that the prenuptial agreement benefitted Asghari more than Spears. In many of these agreements, there are provisions that give the less-wealthy spouse a fixed sum of money for each year of marriage. So it’s possible that Mr. Asghari stands to make more money from having signed the prenuptial agreement than he would otherwise be entitled under community property laws. As I’ve stated, he would be entitled, under community property laws, to none of Ms. Spears pre-marriage money and property. He may be entitled to alimony, but alimony is temporary, and may be based on the length of the marriage (which in this case, was less than a year).

As for the idea that a prenuptial agreement is void if there is infidelity, that is just nonsense. Even there were such a clause in the agreement, it would be unenforceable. In a “no-fault” divorce state (such as California, Nevada, and 13 other states) issues of infidelity are not relevant to a determining the division of marital assets, and any attempts to “penalize” a spouse for infidelity by reducing that spouses spare of property are not allowed.

So, no, Britney Spears was not saved from losing half her wealth because she was wise enough to enter into a prenuptial agreement. And no, the prenuptial agreement is not void if Britney had an affair. We can all sleep a little more peacefully now knowing that Britney Spears isn’t going to go broke from her divorce.

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