August 24, 2011 10:43am PT by Eriq Gardner
Kim Kardashian and Kris Humphries Sign Pre-nup; Lawyer Breaks Down What It Means
E! reality TV star Kim Kardashian and new husband Kris Humphries have signed a pre-nuptual agreement. A knowledgeable source tells The Hollywood Reporter that the negotiations, which had been widely reported, are now done.
But what does that mean? Most people probably assume it means that Kardashian's estimated $35 million net worth will now be protected against the double dribbling of an NBA player who is only worth somewhere between $8-16 million. Perhaps, but as we learned from Laura Zwicker, a family wealth planner at LA's Greenberg Glusker law firm, drawing up a pre-nup in a post-reality TV universe is a tad more complicated than just that.
For starters, Zwicker tells us not to assume that Humphries, an NBA free agent, is necessarily the loser here. The attorney points out that Kardashian has a knack for getting into all sorts of legal trouble from her business ventures, which means she could be one adverse judgment away from seeing her fortune seriously diminished. "He could actually benefit if it clearly delineated that debts and liabilities are actually hers," says Zwicker.
On the other hand, perhaps it's not Kim who needs the protection, but other family members who are entangled in business ventures with the 30-year-old personality. Under California law, increases in value of a joint venture during a marriage are considered a couple's community property, unless otherwise waived in the pre-nup. In other words, the deal may go well beyond protecting the $35 million or so in assets, it might reach further to safeguard the entire Kardashian fortune.
We had more questions for Zwicker. Here's our Q&A with the celebrity pre-nup expert:
THR, Esq.: In many legal practice areas, we see trendy legal theories. Does the same go for pre-nups? In twenty years, might we look back at Kim Kardashian’s pre-nup and go, ‘Damn, that had to have been drafted in 2011’?
Zwicker: Yes. Like everywhere, there are things that are hot now that people won't be doing in 25 years. For example, we are now seeing a lot of structured support payments in pre-nups that I'm not sure are going to be enforceable when marriage ends. Historically, clients didn't touch spousal support in these contracts, but ten years ago, a ruling in a court case suggested that parties could waive or structure their structural support. After the case, wealthy clients started [asking their significant other to] waive support, but upon a recognition that courts were less likely to enforce that, they went the other way, and now try to set forth an agreement whereby the parties get certain amounts depending on the length of marriage. Courts have a very complex calculator for determining spousal support, so I'm wondering if that's going to survive.
THR, Esq.: We have to be honest: Ninety-seven percent of what we know about pre-nups comes from George Clooney in Intolerable Cruelty. Is there really such thing as an air-tight pre-nup and can it be truly be cancelled in a moment of dramatic romanticism when one of the parties just literally tears it apart?
Zwicker: Family code sets out very clear rules to make an enforceable pre-nup. If you followed the rules, you should have an air-tight pre-nup. But I have seen clients -- as result of very aggressive lawyering on the other side -- provide more than what was originally set forth. An air-tight pre-nup works theoretically, but the problem is that it gets so painfully expensive it triggers a settlement. Oh, and these pre-nups can't be cancelled without both parties being represented by counsel.
THR, Esq.: We haven’t checked Kris Humphries’ free-throw percentage lately, but we assume he can afford a pretty good lawyer. If things ever go south for the couple, could he ever push back on Kardashian and claim the contract was unconscionable?
Zwicker: In their situation, it's less likely that a court would find it was unconscionable. They are similarly situated. She might have 10 times as much assets as he has, but he is not poverty stricken.
THR, Esq.: This might be the landmark pre-nup of the reality TV era. As such, what’s the chances the pre-nup can guide post-nup activity, such as who gets to star on which E! show and whether there are any restrictions on the release of a sex tape or that type of thing?
Zwicker: I actually hadn’t thought about that. Pre-nups govern the parties’ property. To the extent that name and likeness are property, I would guess that a pre-nup could govern how they are going to be governed and exploited
THR, Esq.: OK, from 1 to 10, what would be the entertainment factor of a reality TV show that focused on family lawyers doing things like drawing up pre-nups for celebrity clients like Kim Kardashian?
Zwicker: A 10. My guess is you would get a very good audience. The actual drawing up would be extremely boring, but you could make a reality tv show where the two lawyers are battling it out for support, name and likeness, and rights.