The Royal Wedding: If I Were Handling Meghan Markle's Prenup

You must be living under a rock if you don’t know about the Royal Wedding happening this Saturday between Prince Harry and American actress, Meghan Markle. My Facebook feed is filled with photos and updates about who’s attending, what the bride and groom might be wearing, who was selected to be in the wedding party and where the food is being prepared. There are even detailed charts about what time people should turn on their televisions depending on where they live to tune into the ceremony at St. George’s Chapel (and three hours of coverage before the ceremony if you are so inclined to wake up at 4:00 a.m. New Jersey time).

That stuff is all fun. However, as a family law attorney, my mind went somewhere else this morning: How would I handle Meghan Markle’s prenup if I were assigned the task?

It was announced in March that Harry and Meghan would not have a prenuptial agreement. Some speculate it’s because Harry’s money is well-protected in trusts, so he doesn’t “need” one. Others have said that prenups are more popular in the United States but are “just not a British thing.” Well, I have no idea how prenups work in England. In New Jersey, prenuptial agreements protect not only the spouse with the money and assets, but also the person marrying him/her.

A few caveats before I start: I regularly draft prenuptial agreements for both brides and grooms in New Jersey. I have no idea how prenuptial agreements work in England and how enforceable they are in the event of a divorce or death. Truth be told, I have no idea how divorces are handled in England. Even so, I’m a firm believer that clients seeking a prenuptial agreement must obtain the input of an attorney practicing not only where they live at the time of marriage, but where they may divorce or where their estate may someday be probated.

Having said that, this is just a fun exercise. So, let’s pretend that attorneys (or barristers, if you will) in England are representing Meghan and I am called in for my esteemed New Jersey / American input.

Potential Issues in a Prenuptial Agreement

According to Wikipedia (which is my personal Encyclopedia Britannica), Meghan has been working hard on her acting career since 2004. Girlfriend used to even open the briefcases on Deal or No Deal! She has now retired from acting to “focus on her royal duties.” I don’t know what royal duties actually are (does anyone?). I do know, however, that this independent and wealthy woman is walking away from a career she worked her butt off for 14 years to build – all to marry Prince Harry. She did a great job working hard to establish herself too. Of the six (6) people surveyed in my office, the three “young and hip” ones knew who Meghan was long before Prince Harry. The partners of the firm did not, but that’s because two of us are mothers who don’t get enough control over the remote control. The other (Kelsey) prefers watching ESPN or Survivor.

#1: Alimony

My first concern for Meghan would be to make sure she isn’t waiving alimony (or some fair equivalent thereof) in the event of a divorce. Meghan is certainly impacting her earning potential by getting married. She literally quit her career and moved to another country to do something she would never be welcome to do in the event of a divorce.

I know what you are thinking: “Oh puh-lease, that woman will get any role she wants after having the fame of marrying into the royal family and being a princess." It’s not that simple though! First, Hollywood doesn’t work that way. There’s a significant chance that casting directors will be reluctant to cast her in anything that may distract from their project if the audience can’t imagine Meghan in the role of any character, regardless her acting skills. Many movie goers or TV watchers will no longer be able to envision her as anything other than “Princess Meghan”.

Furthermore, Meghan and Harry have voiced their intentions to have children. Those children will be Harry’s heirs. The chances of Meghan being allowed to move those children out of the United Kingdom and into the United States in the event of a divorce are slim to none. That means Meghan herself will be stuck in England without her American career or her American family. And she will no longer have her “royal duties” - just lots of rain to contend with.

In New Jersey, a prenuptial agreement can't address custody or parenting time. Custody issues must center solely on the best interests of the children at the time of the divorce. It doesn’t simply focus on what a couple thought before those children were ever conceived. That is how it should be. Regardless, the reality that the couple will have children will certainly impact Meghan’s future earning potential. This must be considered by securing her alimony in the event of a divorce.

#2: Safeguarding Premarital Assets

As Meghan’s advocate, I would also focus on safeguarding her premarital assets. According to Businessinsider.com, Meghan has a net worth of approximately $5 million. I have no idea whether that is accurate or what exists in her bank account today. It’s really none of our business. However, as her American lawyer in my own imagination this morning, I’m going to keep going with this.

Harry is believed to be worth between $20-$40 million. Some of this is his inheritance from the late Princess Diana. Some is from the “allowance” he gets from Prince Charles (It’s true, he does get an allowance).

Now, I am not saying that any part of Diana’s estate should be subject to the potential claims by her sons’ wives. No way. I’m not going there. I wouldn’t go there in a typical New Jersey divorce either. However, my concern would be what I have seen happen before:

Client (Miss Meghan) goes into the marriage with assets she worked hard for and would have otherwise been exempt from her husband’s claims (whether he is richer or poorer) in the event of a divorce because those assets are premarital. Client then spends this money during the marriage. Maybe she spends it on herself, or an expense with her spouse or, all too commonly, on the parties’ children. Then the marriage ends. She is left with either a substantially smaller amount of premarital assets or nothing at all. And what does Husband say? “Well my premarital assets and my inheritances are exempt from this divorce, so you aren’t getting any of that. Buh-bye.”

To protect Meghan from this scenario, I would want the Agreement to read that: (1) whatever the combined value of her net assets were at the time of the marriage is the minimum of what she would leave the marriage with in the event of a divorce; (2) All marital expenses and Meghan’s personal expenses during the marriage will be paid by Harry; and (3) If Meghan utilizes her own funds to pay such expenses (and I would tell her she better not), she will be reimbursed in full.

#3: Death During the Marriage

My final focus in helping Meghan would be to ensure she is protected in the event of Harry’s death during the marriage. There are two reasons marriages end. One is divorce. The other is death. You need a prenup for both. Even if a client doesn’t want to think about divorce, they can’t possibly deny the fact that someday during their happy marriage, one of them will absolutely die before the other, right?

I am not an estate attorney, nor do I aspire to be one. But as a family law attorney who drafts prenuptial agreements, I need to help my clients understand the importance of “elective shares.” Different states have different “elective shares.” This means that despite what you may provide a spouse in your will, you cannot disinherit your spouse or leave him/her with any less than a certain fraction of your entire estate (a.k.a. the elective share). There is one exception to this rule - a prenuptial agreement that already anticipated this and allowed the spouse to receive a lesser amount than the “elective share.”

If I represent a person who has a family business, inheritance, premarital assets, children from a prior relationship, etc., you better believe I am being super careful with that prenup! The prenup must ensure that the family business created before the remarriage and any inheritance will stay with my client’s family. It must also ensure that my client’s children receive what the client intended them to receive from their hard-earned assets in the event of his/her death.

On the other hand, if I am representing the other party, I want to make sure every single source of funds used during the marriage are not claimed to be exempt and that my client won’t be left with anything in the event of her spouse’s death during an otherwise happy marriage. This is especially so if she left her acting career, country, family and friends to forever live in the land of crappy weather. You know what I mean?

OK, now that I have said my piece in what I hope you all realize was a tongue-in-cheek blog that none of us should take too seriously, I will end this by telling you what I tell all of my prenup clients: “OK, I know this is such an uncomfortable thing to talk about, but it’s over now. Pretend this never happened and go enjoy the wedding!”