PRENUP IN AN ATTORNEY V. ATTORNEY DIVORCE

Jones v. Jones, Nashville, Tennessee, appellate decision filed July 17, 2023

Prenup And Child From Another Relationship As Beneficiary Of A Prenuptial Agreement

The husband and wife are attorneys. They were married in 2007 and had their daughter in 2009. At the time of the marriage, the husband had a 2-year-old son from another relationship. The wife filed for divorce in August 2019 and the trial was held in October 2020. The husband filed the notice of appeal in May 2022. This opinion was filed on July 17, 2023.

The day prior to their marriage ceremony, they signed a prenup (also called a “antenuptial agreement” or “prenuptial agreement”). It was a typical prenup in that each would keep his/her own separate property and that joint property would be equally divided upon divorce; however, what was not typical about the prenup was that paragraph 6 stated that the husband’s son from his previous relationship would be the “beneficiary” of no less than “¼ of the value of the marital property.” In 2008, the husband and wife signed an amendment to the prenup to indicate that an estate plan would control to the extent that it contradicted the original agreement.

At trial, the wife’s attorney argued that paragraph 6 was not enforceable. The trial court concluded that there was no meeting of the minds since there was no marital property in existence at the time of the contract and the only marital property described in the agreement was “jointly titled” property. How did the trial court reach that conclusion? The appellate court speculated that the trial court applied as law, the wife’s testimony at trial.

The appellate court noted the husband did not cite any authority in his appellate brief to dispute the trial court’s conclusion that there was no meeting of the minds. The husband, especially being a lawyer, was required to cite law on behalf of his position. The appellate court does cite cases, wherein, children are beneficiaries of property settlement agreements after the marriage, but that this case was distinguishable because this case involved a prenup – an agreement before the marriage. Some examples of children being the beneficiaries included an agreement where the father agreed to pay their son’s college expenses, and a case where the father agreed to pay a debt in exchange for the mother agreeing to will the marital home to their children.

The husband’s representation of himself for this appeal is another example of “he who is his own lawyer has a fool for his client.” And in this case, the husband is an attorney. The husband’s utter failure to properly brief his arguments resulted in the appellate court awarding the wife her appellate attorney’s fees.