Tom Brady and Gisele Bundchen recently announced not only their divorce, but also that it quickly settled. How could people who have children and almost certain extraordinary wealth quickly settle their divorce case? Divorces involve some amount of conflict, or the couple would not be divorcing. So, what is the explanation?
From the perspective of a seasoned professional, three things likely explain the minimal conflict: (1) a premarital agreement, (2) good attorneys, and (3) reasonableness by the parties. Incidentally, the modern terminology for prenuptial or antenuptial agreements is a “premarital agreement.” Perhaps the most common questions about premarital agreements are whether such agreements work and whether only wealthy people should have one. In Florida and many other states, premarital agreements are perfectly valid and enforceable if done right. They address termination of a marriage, which can only happen by divorce or death of a party. Although many attorneys hold themselves out as family law attorneys, not many have the knowledge and skill necessary for a good premarital agreement. Usually, the key factors are preparation of the agreement well in advance of the wedding, each party’s knowledge of the rights being waived, and financial disclosure. Although Florida enacted the “Uniform Premarital Agreement Act” stating that financial disclosures may be waived, such a waiver is not worth the risk of having an issue which could lead to a challenge of the agreement.
Premarital agreements are not just for the wealthy and can address limited or a broad range of subjects. Importantly, one should be aware that premarital agreements cannot determine issues related children, because courts always have the authority to determine the best interests of children.
Good attorneys are important for a few reasons. First and perhaps the obvious, the attorney’s knowledge and skill is critical to avoiding mistakes which could lead to a challenge of the agreement and its possible invalidation by a court. Second, good attorneys recognize issues and often can figure good solutions, from the routine to the creative. And third, a legendary attorney used the expression, “I would rather have a good attorney on the other side, because good attorneys make better decisions.” Good attorneys reduce conflict, rather than increase it. They know when to stand firm and when to give.
The parties also deserve some credit. Both, not just one, have to make a conscious decision to reduce conflict. Some people proverbially “fight over the time of day.” Others recognize that conflict is bad for them and especially their children. No matter how hard divorcing parents might try to shield their children from parental conflict, children are aware of it. Their awareness might be a question of degree, but they are aware. Parental conflict causes stress and confusion for children. Typically, children bear some guilt about their parents’ divorce and need assurance that it is not their fault. Heightened conflict only contributes to greater stress and confusion for children, including feelings of guilt.
