Prenups and Postnups May Be Modified
As long as both spouses agree, a prenuptial agreement or postnuptial agreement can be modified, or even voided. Colorado has adopted the Uniform Premarital and Marital Agreements Act, which governs both prenuptial agreements (aka “prenups”) and postnuptial agreements (postnups). The Act allows people contemplating marriage to enter into prenuptial agreements, and those already in a marriage to enter into a “postnup”, or marital agreement.
The Act contains no limitations on the ability of spouses to modify a prenuptial agreement, providing they comply with the same requirements that were necessary when the originally entered into the agreement. (One important requirement is that the prenup or postnup be in writing and signed).
Does Trump Have A Prenuptial Agreement?
It is widely reported that the First Couple has a prenuptial agreement, governing what happens to the couple’s finances in case of divorce. No one really knows for sure, but Trump is a rich man who marries younger women, and has a lot to lose absent a prenup, so common sense would dictate a prenuptial agreement. (Although as was wide reported last year, the world’s richest man, Jeff Bezos, apparently did not have a prenup. But he still did okay).
And his track record certainly suggests a prenuptial agreement – when a couple files for divorce, the existence of a prenup (and sometimes its terms) becomes public record. As Business Insider observed:
With three marriages and two divorces under his belt, Trump is no stranger to prenuptial agreements, which lay out what each spouse will gain or lose in a divorce.
Moreover, President Trump is no stranger to modifying prenuptial agreements. He and prior wife Ivana Trump modified their prenup four times during their 14-year marriage (Note – technically, a “prenuptial agreement” is one signed before marriage, while an agreement signed after marriage would be a postnuptial agreement. So even if a couple entered into marriage with a prenup, a new marital agreement signed during marriage is a postnup, and that would replace the prenuptial agreement previously-signed. Both are “marital agreements”, but for the sake of simplicity, this post uses the same “prenup” term as the popular media).
Trump apparently regards prenuptial agreements as a necessary evil:
“A prenuptial is a horrible document, because it says, ‘When we get divorced, this is the way we’ll split things up.’ And when you’re a believer in positive thinking, it isn’t good. But it’s a modern-day necessity.”Future President Donald Trump
But Trump has done well by his prenups. Even after repeated modifications, Ivana tried and failed to challenge their prenuptial agreement. As did his second wife, Marla Maples.
Alleged Modification of Trump Prenuptial Agreement
It is not a stretch to presume that for his first two marriages, Donald Trump had most of the bargaining power, and that any prenup modifications were changes he was quite comfortable with. But as long as a prenuptial or postnuptial agreement included reasonable financial disclosures and no sharp dealing, it is valid even if completely one-sided and the spouses had unequal bargaining power. The property settlement portion of a prenuptial agreement cannot be touched by the court, although maintenance (aka alimony) is subject to a fairness test at the time of divorce. For a complete discussion of marital agreements, see our Prenuptial & Postnuptial Agreements article in the Colorado Family Law Guide.
Thanks to Trump’s election, the bargaining power has shifted to Melania Trump. The evangelical vote can forgive past divorces, but divorcing while in office risks losing supporters. In an article titled “What Would Happen If Melania and Donald Trump Got a Divorce?” Town & Country two years ago asked family law experts this very prescient question:
“When Trump ran for and then became president, Melania’s situation changed. Doesn’t she have a lot more leverage now that it’s so important that the marriage doesn’t fall apart? Might she have renegotiated the prenup?”
Unfortunately, neither attorney in the article actually answered the prenup modification question directly. However, The Washington Post believes it has the answer. In an article yesterday, the Post reports that Melania Trump turned the tables on her husband, and used their changed bargaining positions to renegotiate their prenup.
Changed Bargaining Power Means Changed Prenup
When President Trump was sworn into office in January 2017, son Barron was still in school in New York, and Melania remained behind until he finished the school year rather than moving immediately to the White House. Although it raised eyebrows at the time, the reasoning was sound, and even non-celebrity parents have made similar painful choices.
The prior few months would have shaken most marriages, between the Access Hollywood tapes and reports of affairs with porn stars. Combine that with the changed bargaining power, and if she did renegotiate the prenuptial agreement (again, no concrete proof she has), there’s nothing in the law preventing a spouse from driving a hard bargain, or even threatening divorce to get her way.
Mary Jordan, the Post reporter who broke the news, published a book which included these revelations: The Art of Her Deal: The Untold Story of Melania Trump. Jordan interviewed over 100 people who knew Melania Trump, most of whom apparently provided general biographical information rather than details of the alleged prenup renegotiation. But the picture painted is of a powerful woman in her own right who can drive a hard bargain herself.
New Prenup Terms as Unknown as Original Terms
The article is scant on the details of a prenuptial agreement, which is understandable as those who know probably won’t say much. But according to CNN, three sources reported that the changes included ensuring son Barron was not excluded from the family business.
Melania Trump’s chief of staff Stephanie Grisham has dismissed the book, without actually denying the specific allegation of the prenuptial agreement renegotiation:
“Yet another book about Mrs. Trump with false information and sources. This book belongs in the fiction genre.”