Prenups: The Key to an Amicable Divorce? with Charles Jamieson
In this episode of How to Split a Toaster, Seth Nelson and Pete Wright dive into the world of prenuptial agreements with legendary Florida attorney Charles Jamison. They explore how prenups can help keep your divorce amicable and costs down. Charles shares his expertise on crafting the "unbreakable prenup" and provides valuable insights into navigating this complex legal territory.
Seth, Pete, and Charles discuss the essential components of a well-drafted prenup, including proper signing procedures, full financial disclosure, and fair negotiation. They emphasize how a carefully constructed agreement can protect both parties and minimize conflicts during a divorce. The conversation also touches on postnuptial agreements and how they can help alleviate financial stressors in a marriage.
Questions we answer in this episode:
• What makes a prenup "unbreakable"?
• How can a prenup help keep divorce costs down?
• When should you consider a postnuptial agreement?
Key Takeaways:
• Ensure your prenup is properly signed and witnessed
• Provide full financial disclosure to protect both parties
• Negotiate fairly to create a more unassailable agreement
Throughout the episode, Seth and Charles offer practical advice and relatable examples to help listeners understand the importance of prenups in modern marriages. Whether you're considering a prenup or facing a divorce, this episode provides valuable information to help you navigate the process with greater clarity and confidence.
Links & Notes
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Pete Wright:
Welcome to How to Split a Toaster: A Divorce Podcast About Saving Your Relationships from TruStory FM. Today, how do you keep your toaster friendly?
Seth Nelson:
Welcome to the show, everybody. I'm Seth Nelson. As always, I'm here with my good friend, Pete Wright. Today, what does it mean to strive for an amicable divorce? How does it further your efforts to keep your divorce costs down? We've got that, plus prenups that work today for our guest, legendary attorney, Charles Jameson from the great state of Florida, my home state.
Charles Jamieson:
Oorah.
Seth Nelson:
Charles, welcome to the Toaster.
Charles Jamieson:
Oorah to Florida. Welcome to the Toaster. Glad to be here, you guys.
Pete Wright:
We love keeping it local.
Seth Nelson:
All right, Charles, Pete's a little under the weather. His voice might be a little strained today. So Charles, you and me, we got two lawyers talking. Pete wasn't going to get a word in edgewise anyway.
Pete Wright:
I wasn't. Yeah, I was barely invited.
Seth Nelson:
So let's get right to the prenups 'cause this is where Charles early wants to talk about. The unbreakable prenup, is that what you're going to tell us about, Charles?
Charles Jamieson:
We're going to talk about the famous, I don't know if any of you remember that rom-com from the early 2000s, the Cohen Brothers movie, Intolerable Cruelty.
Pete Wright:
Fantastic.
Charles Jamieson:
Yes, it was. George Clooney plays a divorce lawyer, and in his firm, there is the reverent, and it's like, gosh, everyone bows down when they say the word, "Massey prenup," the unbreakable prenup-
Seth Nelson:
That's right.
Charles Jamieson:
... the prenup that could withstand any force of nature law or will.
Seth Nelson:
But it cannot hold up to barbecue sauce.
Charles Jamieson:
Well, sometimes prenups can't do much better than that if they're poorly drafted. But again, so the question, this has become the holy grail for attorneys and people who are trying to protect themselves in the event of a divorce, if you really want to cut out the expenses of your divorce, in most cases, prenuptial agreement is the way. Because what does it do? It sets out what happens if we get divorced or what happens if we die, I die or you die during the marriage. So it cuts out a lot of crap because you don't have to go in front of a judge. You don't have to do anything unless the parties start fighting about it. So the question is, are prenuptial agreements unbreakable? Well, a salient date, and you can interrupt me anytime because I can go on forever like any attorney non-stop.
Seth Nelson:
No, we're good. Keep going. I'll interrupt you.
Charles Jamieson:
It's the salient events for prenups in Florida and maybe elsewhere in the country, probably if you're not in Florida, you have to ask something about the Uniform Prenuptial Agreement Act, the UPAA. The UPAA is a uniform statute that can be incorporated by almost every state in the country in some form or another. Florida incorporated it in 2007. What the importance that was that it made it easier to defend prenups if they were properly drafted. So the first question you have is, what are the basic dos rather than don'ts? Well, when you do have something in writing, not orally, written agreement signed by both parties and in Florida witnessed by both parties with two witnesses because we have real estate issues and we have probate issues, and in Florida we need two witnesses signed, sealed, and delivered.
Seth Nelson:
What Charles is doing here, Pete, there's different parts to going through these prenups. To Charles's point, we want to prevent as best we can, the challenge to a prenup, and if there is a challenge, we want to prevail and prevail as quickly and economically as possible. So one way to challenge a prenup is just to say that the actual signing of the document was done in improperly and therefore, it's not enforceable. That's why he's talking about how many people have to sign. Does it have to be notarized? 'Cause there's very specific requirements. So you can't purchase or even rent a piece of land or an apartment in Florida, check your local jurisdiction, without a written agreement. Nothing regarding real property can be done without a written agreement. So that's why you need this signed by two witnesses and a notary because it might say who gets the house and therefore, it is a document dealing with real property.
Pete Wright:
Real property.
Seth Nelson:
Yeah.
Pete Wright:
Right.
Seth Nelson:
Yep.
Pete Wright:
Okay.
Seth Nelson:
There's the signing and Charles, correct me if I'm wrong, there's the negotiation in disclosures.
Charles Jamieson:
That's one of the things I was going to get to. Clearly, you have to get to the agreement that got to the agreement. What I want to do is do we want to go on the front end; front end, written, signed. Back end, if you're going to amend, revoke or do anything else to this agreement, it also has to be in writing, signed and witnessed. Before, you had common law contract issues that could come in and try to screw around with the validity of your agreement, prenup. That only occurs now if it's in writing.
So in front and back end of prenuptial agreements, you got to have it in writing and it got to be signed. So let's go into what I call the ephemeral things, the dos or don'ts, things that are not in the document. One, do not, do not pay for your spouse-to-be's attorney and do not, and I mean do not even recommend to your spouse whose attorney are you going to get? Why? Because we have the issue of coercion, unconscionability. You want to divorce yourself from any kind of innuendo that somehow this was a big job between you, your lawyer, his, her lawyer, or somehow you bought off her lawyer or his lawyer.
Pete Wright:
How often does that come up, Charles?
Charles Jamieson:
Well, you'll be surprised if there's any kind of ability to go after prenup, people will. For instance, let's look at Kevin Coster's case. Kevin Costner, multi-multi-millionaire at the time of his divorce, had a prenuptial agreement 'cause he had been married before.
Pete Wright:
Now he's worth five bucks.
Charles Jamieson:
Right?
Seth Nelson:
He's got all that Yellowstone money.
Charles Jamieson:
Yeah, his wife was going to receive 1.5 million under the prenup if she didn't challenge it. Well, what did she do? She turns around and challenges it because she figures, "Maybe I can wear him down or do something to get it kicked out." Fortunately for Mr. Costner, the judgment sent a signal to the parties that he was probably going to be enforcing this agreement because he made I'm pay attorney's fees for a discovery issue, which is unusual. If that was not going to be the case to a pecuniary spouse, in her case, the spouse with a lesser amount of money probably would not have been required to do that. Then the second shot over a bowel was when he says, she came in and said, "Child support cannot be function of a prenuptial agreement."
Seth Nelson:
No part of a prenup.
Charles Jamieson:
She asked for, I think, it was $167,000 a month for support for their three children. The judge came back and said, "I'm only going to give you $67,000 a month for the three because that's what their needs are.
Pete Wright:
Wow.
Seth Nelson:
Now hear that out, Pete, only, only $67,000 a month.
Charles Jamieson:
Now, Pete, people may shudder and say, "What the hell does that have to do with me? I don't have anything near that money," but I'm just telling you, if you can always take these issues down, there's always something may want to fight about. That's why I can say you can have an unbreakable prenup. The prenups may be challenged if the circumstances are right. I'm giving you a seemingly gross example in Mr. Costner's case of why the kinds of money that were involved, so why would people ask for that? Because they could potentially get it.
Pete Wright:
Yeah, why wouldn't they ask for it?
Charles Jamieson:
For her losing 1.5 million, "If I can wear him down a bit," she said, "I'm probably going to get at least 1.5 if we settle." Of course, what did they do? After the child support hearing, they settled the case. Of course, it's confidential. We don't know what the terms were, but it probably was for more than 1.5 million, but certainly not the half of his estate that she would've gotten had they, in fact, litigated the case.
Seth Nelson:
That's always the key. So, Pete, what I try to do when I draft these is under Florida family law in a prenup, you're actually not allowed to waive temporary attorney's fees or attorney's fees during the pendency of the litigation sometimes it's called. Because in a divorce, it's a court of equity. They want everyone to have equal footing. Someone can't go hire the best lawyer in the state and the other one not afford a lawyer. But in the prenup, you're allowed to have what's called a prevailing party clause, and a prevailing party clause is my client challenges the prenup. Charles' client is defending the prenup saying there's no problem. If I win my challenge, Charles's client has to pay my fees. If Charles wins, my client has to pay his fees. So it's not upfront.
In fact, my client didn't have the money, I could go get temporary fees and so Charles' client pays my fees, then I lose. So I'm going to have to pay those fees back like my client's going to have to pay the prevailing parties and then we're going to argue in this circular argument. So there's ways to have skin in the game right up front. The other thing, and Charles, I'd like to get your viewpoint on this, in the agreement you can say that both parties agree for the court to bifurcate the trial, to divide the trial. Where if you're going to challenge it, we're going to hear that first. We're not going to go all the way through a full divorce and challenge the prenup at the same time. Some courts will let you do it and some won't. What do you think of that, Charles?
Charles Jamieson:
Well, I think it's a good cause to have in your agreement. My experience has been since 2007, the courts have been more willing to bifurcate than they were previously, simply because if the agreement is valid, most of the case goes away. If it is invalid, then they'll quickly set it for a hearing.
Seth Nelson:
What you say in those arguments, Pete, to the court are, "Judge for judicial economy, it's better to bifurcate," which is code for, "You don't have to do as much work if you rule on my side and kick it out," right?
Charles Jamieson:
Absolutely. Remember, you're attaching a copy of the prenup to ask the court to enforce it in your petition for divorce or you counter-petition for divorce, and the judge is going to quickly flip through it at some juncture and it's going to tick off in his mind. Of course, the one thing the judge doesn't know is when was the agreement signed in relationship to the marriage? Which is what we call the coercive issue. That's a defense against prenup is, was it signed under coercion or duress? The classical example is the showing up the night before the wedding giving the bride prenup and say, "Sign it or we're not getting married tomorrow." All the guests are there, her parents are there, her bridesmaids are there. The emotional grief and anguish that she would experience and the embarrassment and shame compels her or forces her, coerces her to sign the agreement. So the question is, when should the prenup be prepared to be presented? Seldom ever met, the gold standard would be have the prenup signed before you even have a wedding date planned.
Seth Nelson:
No one ever does that.
Charles Jamieson:
Yeah, I was just going to ask because then it can be absolutely no question about coercion, but the reality, of course, is different because I'm sure Seth and Pete, you're getting calls all the time from people saying, "Well, I'm getting married in two weeks. Can you do a prenup for me?" No, because I don't want to be caught up in that issue.
Seth Nelson:
Let me just speak to that, Charles, when that happens, which happens frequently, I tell them, "We can do a prenup and you're going to sign my CYA letter saying that this might not be enforceable based upon the timing." then I say, "But it's one thin layer of protection, and after the wedding, we can do a postnup, and then you don't have the coercion based on the timing." So I've done prenups very soon before the wedding and then six months later they come back, we do a postnup. We get rid of that problem and we move forward
Pete Wright:
Demonstrates that both parties are in good faith, and you don't have to assume anything.
Seth Nelson:
That's right. Then my client says, "Well, what happens if my new spouse doesn't sign the postnup?" I say, "Then you file for divorce because now they're resting their laurels on, 'Hey, maybe it's not enforceable,' and you got a problem."
Charles Jamieson:
I agree. I agree. That's one possible strategy, I prefer to play it completely safe, and I've got plenty of other people to deal with. My time limit is 60 and the other side's got to have an attorney. If the other side comes in without an attorney, then I want three or four months out at least.
Seth Nelson:
Yep. All reasonable approaches, just different ways to handle it.
Charles Jamieson:
There's no right or wrong as we like to say, it depends.
Pete Wright:
Okay.
Seth Nelson:
That's right.
Charles Jamieson:
The classic is turning these in.
Pete Wright:
So that's one issue. So the next issue, and Seth, you've already referred to it is has there been absolutely full and fair disclosure of assets, liabilities and income? The UPAA has made that easier for the parties because yes, it can be, that is one way to do it, or B, in the clause they waived the right to see it, or they have a sub-C on that section says they've had the general idea of what they are. I prefer to have it all three. One, we have a full disclosure. Two, we have a waiver of any disclosure in the agreement and C is, they said we have a general understanding anyways that forfeits that. Now the question becomes what is full disclosure? Obviously, full disclosure means full disclosure. In this day and age where everyone's busy and they say, "Well, geez, I don't know. This is going to take me forever to do it." My response is, Do you have a financial advisor?" "Oh, yeah, I do." I say, well first let's start with them and tell them what your net worth is. Let's get the asset list."
Seth Nelson:
See, and that's the difference between Charles and me.
Pete Wright:
What's that?
Seth Nelson:
Not right, just different. Charles says, "Do you have a financial advisor? Legitimate question. I say, do you have any cash in the mattress?"
Pete Wright:
In the mattress.
Seth Nelson:
Let's start with that, okay? Or otherwise known in the modern day age crypto.
Pete Wright:
Ah, okay.
Seth Nelson:
Right? 'Cause-
Pete Wright:
Start with crypto-
Seth Nelson:
... start with crypto-
Pete Wright:
... just in case.
Seth Nelson:
... and go from there.
Pete Wright:
If they say they have a lot of crypto, that tells you a lot about the marriage already.
Charles Jamieson:
Oh, yes, already, or the safety deposit boxes that are scattered here, there and everywhere.
Pete Wright:
Yeah.
Charles Jamieson:
Again, it's the only question of style and how you go about it. Again, crypto is one of the things I have to be checked off to ask if we don't see it on their disclosure, simply because it's becoming more and more frequent and the more entrepreneurial you are, more likely it is to show up. We now see it in the standard request for production from the Florida Supreme Court of Mandatory Disclosure. They now have electronic [inaudible 00:15:38]
Seth Nelson:
That's when you're going through a divorce, Pete. We've talked about that a lot.
Pete Wright:
Yeah.
Seth Nelson:
So crypto is now a part of that.
Charles Jamieson:
So it's becoming more and more well known, but again, you got to have full and complete, and that means full and complete. For instance, I'm now looking over a New York prenup that's being written by someone from Canada and there's obviously big money floating around all around the place. They say, "We made a full and complete disclosure, but they don't give me an exhibit." I said, "That's Exhibit A and B, so that's the document. So that's my disclaimer, my opinion letter. I haven't seen A and B, I have no idea what that is. I don't know if it's complete or not." So again, it's got to be complete. That is absolutely critical.
Seth Nelson:
The larger I've seen historically, somebody's net worth, typically it's because they have numerous different business interests or investments and that's where you really need to dig into the tax returns, see what's out there. Sometimes someone, they have so much they just forget.
Pete Wright:
Well, that was my question. Seth and Charles, when you say full and complete, that seems like a big hairy audacious goal for somebody who has a lot of lines of income. So I'm curious, what are the things that are easily missed? We've already mentioned crypto, but are there other red flags?
Seth Nelson:
Well, Pete, let's just go some basic stuff. I know of a prenup where literally both parties knew about the asset that I'm about to tell you about and both parties forgot... It was owned by one of the parties. The other party definitely knew about, it and the party who owned it forgot to put it on their disclosures. It was like two months later and they're reviewing it again, and the party who did not own it goes, "Guess what? You forgot something off your disclosure." Now these people are engaged, right?
Pete Wright:
Oh, my God.
Seth Nelson:
They say, "What? I went through this thing 100 times. What did I leave off?" I said, "The rental property." Literally, it was a house. Now, how do I know that the other party knew about it? Because this couple used to live in that house-
Pete Wright:
In that house.
Seth Nelson:
... and literally they just forgot about it.
Pete Wright:
Okay.
Seth Nelson:
So this stuff happens. There was another incident I knew of where they had a company that they were involved in for a while and then they weren't and stuff. It was kicking off income, and it was going into her account. The accountants were handling it, and it just got missed, so it all depends. So you really have to have a keen eye and to go through all the pieces of the puzzle: checking accounts, the bank statements, the credit card statements, the crypto statements, the tax returns, and get a couple of years back to be like, "Oh wait, what happened to this piece of property? It was on your tax return here. You had investment income somewhere. It fell off, but I don't see a big influx of cash. Did you sell that business? Did you not? What happened?" So you got to put the pieces of the puzzle together, and it's worth doing on the front end. No one wants to do this because they'd rather be picking out what color flowers they're going to have at their wedding.
Pete Wright:
I was just going to say there's a lot of distraction right about that time.
Charles Jamieson:
Well, you're busy paying attention to what you consider to be the more important things, which is why if I've got a very complicated estate or rich estate, I want to have it signed off by their accountant, the financial advisor and by the party that they've done that and I have the clause that says we have a general idea of the assets and liabilities of the parties, and if it's not on the agreement, we waive any problems concerning you. You try to protect yourself everywhere you can, but you'd be surprised how many times they talk about an A or B and there's not even an A or B there.
Seth Nelson:
It's not attached.
Charles Jamieson:
It's not attached, and it's signed-
Seth Nelson:
It's sloppy.
Charles Jamieson:
It's out there in another world somewhere.
Seth Nelson:
Let me just be very clear of what I hear Charles say when he says, "You have to protect yourself." What I hear is that protects both parties. It's not just the guy or the girl with the money, it's not just the spouse with the money, it also protects the person without the money because the prenup defines what you're going to get. So it might be better or worse than what you would get upon divorce. It might be better or worse based upon if the law changed down the road. You just don't know. So whenever you get married, you are entering into a contract whether you like it or not, and that contract is defined by the state where you will get divorced if you're getting divorced. So what a prenup does is says, "We don't want to have the state define how we're going to divide up the money. We're going to do that ourselves," and the law allows you to make that decision. So they're not necessarily bad thing. Pete, you were going to say something, I thought?
Pete Wright:
Maybe this is a distracting question because one of the things that's interesting since you brought up postnup" already, if you are thinking about driving toward divorce, but you don't have a prenup, is a postnup effectively pre-homework for your divorce? If you decide, "Hey, our marriage is dissolving, let's do a postnup and then we'll go get divorced," or is that just a waste of time?
Charles Jamieson:
Not necessarily, because the parties are taking care of all the issues before they go in front of the judge. Sometimes people come to you and they don't want to get a divorce. So what do you do? Well, one thing you could do is a postnuptial agreement. In those cases, I probably also would bring in a estate planner, so to make sure that their estate plans are consistent with their postnuptial agreement. But I've had people who said, "We're not ready for divorce yet, but we want to live separately. We've got two houses or we've got enough money to get one of the spouses a house. I'm going to stay in the marital residence." That's what they want to do because they're religious convictions or the fact that they just been a couple so long that they present as a couple, but they don't want to be together.
Seth Nelson:
The other thing is it's not necessarily a bad thing because sometimes a biggest stressor in a marriage is how finances are dealt with. Literally, you do a postnup and you talk about how finances are going to be dealt with during the marriage. Is someone going to have this account or is someone to give so much, call it an allowance, call it spending money, call it whatever you want, but if we get divorced, then this is how the money's going to be divided. I've seen those, Pete, and then I've seen those people stay married 'cause the stress of someone spending or overspending, it's like they finally had the talk about their budget that they never had. Instead, they just fought about it, and then they ended up staying married. So it's not necessarily a bad thing.
Pete Wright:
It does make me ask from your perspectives, I guess, on the attorney and counselor, more the counselor part, how has the prenup changed marriage over the decades that you've been practicing? Have you seen the fabric of marriage change?
Charles Jamieson:
Maybe it's better to ask the question, have I seen this fabric of prenups change over the time?
Pete Wright:
Okay.
Charles Jamieson:
I would probably want to frame it that way. My response would be, "Yes. I see." When I started practicing decades ago, prenuptials were Draconian instruments, which basically you said, "I keep it all, you get nothing." That was basically the contract, and it was a little negotiating back and forth, but not much. But I found that over time there is more negotiation going on now, what is going to be the alimony? Frankly, that kind of negotiation, it makes your prenup more unassailable or it makes it more unbreakable because there's an actual negotiation by the parties. They know what they're going to get, they bargain for what they want to get for, and it's very hard then to say it's in coercive or unconscionable.
Seth Nelson:
That's right. That goes to that question that I ask at all signing ceremonies, "Are there provisions in this agreement that are more favorable to you than the first draft of the agreement that was presented to you?" Yes. That shows you're not being coerced because you actually bargained for something more.
Pete Wright:
Okay.
Seth Nelson:
That's the point of that. Okay? To Charles' point about having that bargaining power, so to speak, is the one choice is you don't get married. That's the nuclear option. But it's a difficult negotiation because you're dealing with what ifs, and when you deal with what ifs, everybody views the what if in a light more favorable to them for the hypothetical of why they should get more or not get more. So here's the typical example. You're the one with the money and you think you're being, quote, unquote, "fair or generous," which are very subjective terms, and your spouse-to-be is asking for more. You say, "But if you cheat on me, really, or if you leave me, why should I have to pay you this money?" It gets very personal very quickly. So the dynamic of negotiating these things can be extremely sensitive. You just have to be aware of that, that you're trying to protect both clients because both lawyers want this to be an enforceable document, 'cause that's what they're hiring us to do.
Charles Jamieson:
At the same time, what I often found these negotiations for prenuptial agreements will make or break the marriage, 'cause if you want to get something to get real about who they really are, start talking about money.
Seth Nelson:
Yep.
Pete Wright:
Yeah.
Charles Jamieson:
That's how I found some engagements get broken off because the parties came to an understanding that their view of life money and the future was far different than what they thought it would be. That's probably, in one way, a good thing rather than a bad thing.
Pete Wright:
Yeah, it gives them an excuse to talk about something important that a lot of couples-
Charles Jamieson:
Do not.
Pete Wright:
... they haven't really, they don't.
Seth Nelson:
Charles, I'm going to pivot here just for a minute, 'cause I want to get your input on this 'cause this is something that I've been doing on some prenups recently. My goal in the prenup, Pete, is not only to define who gets how the money's divided, but sometimes you don't know what the value will be of certain items, say, the house. So I'm just going to say, guy wants to keep the house. Woman says, "Yes, you can have the right of first refusal, but I get an equal amount of our cash that is equivalent to the house." Well, now you have a valuation problem. How much is the house worth? So what I have done, because the house is controlled by market forces, let's just say you're not making any additions, there's no hurricane coming through, the house is passive gains or losses, and it's all paper until it gets sold.
Well, how do we value it, and what is the date of value? So what I have done, and attorneys have liked this, I'm interested in Charles' view on this, is I say that we value it on the date that we file for petition to for dissolution of marriage. The date that it's filed, that leads to a final judgment. You don't get to file it the next day after you get married and five years later get divorced and say, "Wait, it's way back then." It leads to a final judgment. That's the date of value, because now you're not arguing if you're litigating for six months or a year, then you could really have a big swing in what that value is and how much cash someone gets.
So I always say they have a first refusal. If wife doesn't want it, husband gets it. If he doesn't want it, they sell it. So you have to work out the different scenarios. Then you say, "Well, how is it valued?" It will be valued by an appraiser that typically works in that area with the proper licenses. The the other one says, "Oh, well, that could be high or low." "Okay, let's get a second appraisal and take the average." Or you get those two appraisals and they pick a third one, and you take the average. There's ways to solve these problems on the front end that you don't have to litigate them on the back end. Charles, what do you think of that?
Charles Jamieson:
I think it's a brilliant idea.
Seth Nelson:
Pete, I got brilliant idea.
Pete Wright:
I know.
Seth Nelson:
Nice.
Pete Wright:
I know.
Seth Nelson:
Thank you, Charles. That check obviously cleared before the show started.
Charles Jamieson:
Yeah, but I think what you're doing here, Seth, is you're looking at a potential problem and you're solving it before it becomes a problem. That's what the purpose of the prenup is to do, is to give people predictability, what will happen when the divorce occurs? That's really what the prenup is all about. When you go in front of a judge, if it's his great day, you're going to have a great day result. Bad day, you're going to have a bad result. There's no predictability with a judge. You're giving a stranger the opportunity to control your lives and make decisions about them, and the judges are clear about this. I think most of our judges work hard and do a great job or do the best they can, but they're clear when they have what I call the talk during divorce to the parties, which is, "Two people who know the best about yourselves are you. I'm going to do my best in your case, but when I'm all said and done, I'm going to make my decision, and I'm going to get it wrong. Someone's going to think I'm going to get it wrong."
That's what a prenup does. Now, the one other thing I'd like to bring up a prenup is, and Seth, I'd like to have your viewpoint on this, over my career, I've seen alimony awards become smaller and smaller for cases. As a father of two adult daughters who are not married, if one of the parents are going to be the primary parent and stay home and do most of the childcare, and that's not an unusual situation even today, then what you're telling us is that one of the spouses for a period of time is taking them out of the job market, taking themselves out of the income that they could have earned and taking themselves out of the retirement assets they could have acquired.
That, in my opinion, has got to be recognized in some fashion, which would lead us to be negotiating a prenup with some kind of recognition. What that amount is has to be calculated in some fashion. But again, I think that's just another reason for people to be looking at prenups and why the spouse who may be lacking in income or monetary assets shouldn't feel like they're going to be bullied or abandoned by this prenup. They can take a tough stance, but they got to know, they understand they have to stand by their guns if they're not going to be compensated in some fashion for this economic loss, one that I don't think alimony adequately does.
Seth Nelson:
Yeah. First off, I agree with you 100%. We all know, Pete, on this show that the alimony statute has changed in Florida, and we've talked about that at length. We're not going to bore people with what it is now. Check your local jurisdiction. But one thing I've done on those issues, and it really depends on the incomes versus net worth, but when I'm dealing with very high net worth individuals, and I mean the 1% of the one percenters, instead of having a regular reoccurring alimony payment, what I've drafted in the past, which I think is fairly unique, but my clients and the lawyers seen to have liked it, is, and I'm just going to make up very large numbers-
Pete Wright:
Sure.
Seth Nelson:
... just for a hypothetical sake, say that the wife will receive 20% of the net worth of all of the assets. It doesn't matter whether it's commingled or not, it doesn't matter if it's in his name, her name, joint names, you look at it all, and she's going to get 20% of the net worth including the house. So if she wants to keep the house, the value will be part of her 20% with a cap of $20 million. Okay? So I put a cap on it. So you got a wage guy or somebody that has $150 million, you don't want to go to litigation and get forensic accountants to figure out his net worth to do the 20% because you have a cap.
If he wants to write a check for 20 million minus the value of the house, which might be 4, and write a check for 17 million and be done, that may be cheaper in the long run than going to litigation and getting all these businesses valued to determine what the combined net worth is to do the percentage. So I always give people the out, and of course, it might go up over time. It might say if you're married for 0 to 5 years, you get 5% of the combined net worth. Or if you're married 5 to 10 years, you get 10% and then you get a cap. But you can stage it. It doesn't all have to be on day one, so it's another way to limit litigation.
Charles Jamieson:
Again, this is what these documents are about. They're about limiting your expenses, but giving you predictability. Life is uncertain at best, and going into divorce cases often is a crapshoot. So what you're doing is you're leveling out the playing field. You know what this rocky part of your life is going to look like, you know what's going to happen economically at the end, and that's what this is about, giving you predictability and control.
Seth Nelson:
Now, Charles, I have a question for you 'cause this question gets asked a lot before we wrap up here. I just want to get your input on this last question. Do you think there's a set amount of money that people might need to have, either net worth or income to consider a prenup, or should everyone consider a prenup?
Charles Jamieson:
It's an excellent question, because I think you could always answer it the ubiquitous way attorneys do by saying it depends.
Pete Wright:
It depends. Yeah.
Charles Jamieson:
But I don't think there's any cut off, frankly. I think people can say, "This is what's mine. What little I have is mine. My income may be mine." It depends obviously upon where they are in their lives. They're just starting out, but they're both going to make making income, so what? I think it becomes absolutely necessary, if this is your second marriage, it's your second marriage and you have children, your children are going to be like, they're going to be coming down like a ton of bricks on your new spouse. Why? Because they're going to say, "Every dollar that goes to her or him is a dollar less for me." We've seen this time and time again in probate and in post-divorce situations where prenuptial agreements were not in place. So what you're doing is you're giving protection to your new spouse as well as giving some sense of assurance to your children what's really happening here. The easiest way in those circumstances may be to acquire life insurance for your new spouse, but if you're getting married later in life with health issues, that becomes somewhat inexpensive and not practical.
Seth Nelson:
To be clear, Charles said, for your second marriage, I think you also meant for your third and fourth and fifth-
Charles Jamieson:
And fourth, keep it coming.
Seth Nelson:
Right.
Charles Jamieson:
For those of us who are repeat offenders, yes.
Seth Nelson:
Yes, that's right. That's right. I have a little card, Pete, that has like Cupid's arrows-
Pete Wright:
Punches.
Seth Nelson:
Yeah, punches. Punches, it's just like going and getting donuts.
Pete Wright:
If only.
Charles Jamieson:
But on the other hand, I think we have to be aware of the statistic that goes along with that, is that people think that you've been divorced once that's it, you're not likely get divorced again. No, the divorce rate for second, third marriage is far, far greater than divorce rates for first marriages. Each time you get married, that rate of divorce gets higher. So you're at more risk. That's why I say second, third or fourth marriages, yes, absolutely, it's got to be...
Pete Wright:
Absolutely.
Charles Jamieson:
I don't care how little you have [inaudible 00:35:53] how much.
Seth Nelson:
So I've always wanted do this 'cause this is usually Pete's line. Charles, this has been great, but before we wrap up, where can people find you? Give your plug, give your pitch, where can they find you?
Charles Jamieson:
Well, our offices here is West Palm Beach, but you can go on the internet at www C-J-A-M-I-E-S-O-N-L-A-W.com. We're there loud and clear. You can go to YouTube, we've got YouTube videos there. It's been a gas talking to you guys. I look forward to doing it soon again.
Seth Nelson:
Yeah, that's for coming on.
Pete Wright:
This has been great, Charles. Thank you so much. Thank you everybody for downloading and listening to the show. We sure appreciate your time and your attention. On behalf of Charles Jamieson and Seth Nelson, America's favorite divorce attorney, I'm Pete Wright, and we'll see you right back here next week on How to Split a Toaster: A Divorce Podcast About Saving Your Relationships.
Outro:
How to Split a Toaster is part of the TruStory FM Podcast Network, produced by Andy Nelson, music by T. Bless & The Professionals and DB Studios. Seth Nelson is an attorney with NLG Divorce & Family Law with offices in Tampa, Florida. While we may be discussing family law topics, How to Split a Toaster is not intended to, nor is it providing legal advice. Every situation is different. If you have specific questions regarding your situation, please seek your own legal counsel with an attorney licensed to practice law in your jurisdiction. Pete Wright is not an attorney or employee of NLG Divorce & Family Law. Seth Nelson is licensed to practice law in Florida.
