LOS ANGELES: L.A. The judge should throw out the McCourt post-nuptial agreement because it is unconscionable

UPDATE: JAMIE WINS!
BREAKING DIVORCE NEWS: September 1, 2010. Jamie and Frank McCourt are back in Los Angeles Superior Court litigating their divorce, and specifically, sparring over a prenup post-nuptial agreement. Judge Scott M. Gordon  should throw out the McCourt’s post-nup as it relates to who owns the Dodgers simply because the post-nup is unconscionable and inequitable at the time it is being enforced.

Which is better a prenup or a post nup?

After all, Jamie and Frank McCourt were married for 30 years and they built their company and nursed the Dodgers to a winning team together. This post nup was entered into in 2004, 26 years into the marriage and as a lawyer, Jamie should have known it was bad news. Jamie says it was to protect their assets from creditors and given that her husband had had a “string of business failures” prior to this point in their marriage, she was astute, in a manner of speaking, to insist on this but it in the end, it may have been a mistake for her. Had the marriage worked out and the Dodgers failed, Frank would have been happy that she had insisted on this because it would have been to his benefit.
But the marriage did not work out. And the Dodgers is a money maker. So what is the equitable thing to do here? I think the only thing the court can do is to void this post-nup as unconscionable. Sure, post nups are the new black and everybody is getting them. But it doesn’t mean that all of them are fair and equitable.

Are post nups the new black?

 The bad news for Jamie is that, as it stands, if Jamie loses, Frank walks away with close to $700 million dollars and Jamie gets roughly $80 million in property that may or may not hold its value in this economy. How is that fair? That after 30 years of marriage and helping to build the Dodgers that she walks away with 10% of their combined net worth? She wasn’t just a plastic-surgery enhanced bimbo who married him and had a December/May relationship that was predicated on sex. This was a true partnership of equals. They married young, fresh out of college. They struggled together. They built their empire together. Anyone who is fair-minded can see that. Therefore, it is fair and equitable that they share equally in the spoils of this union.
The McCourts were married in the state of Massachusetts and lived in Massachusetts for the lion share of their marriage. Massachusetts is an equitable distribution state where, I believe, title to the property does not come into play in determining what is fair and equitable. As long as it was earned during the marriage, it’s marital property. California is different. It is a community property state but title seems to matter more in that jurisdiction; although, I think it is the post-nup and not so much the title rules that has Jamie in a bind. I think the court ought to consider Massachusetts rule on this since they were residents of Massachusetts at the time of their marriage and for most of their marriage.
But more than that, I think the court should consider the inequitable result if this agreement is enforced.
And still more relevant is the fact that the circumstances of the Dodgers today, has changed considerably from the time they entered into the agreement. This asset has quadrupled in value and it is unconscionable for Frank to try to say it’s all his and not give Jamie any. It’s kind of greedy as a matter of fact.
Besides, there is evidence that Jamie and her lawyers were trying to re-up the post nup prior to the filing of divorce, but Frank conveniently never got around to signing off of the papers.
Consequently, I am totally in Jamie’s court on this one and I think Judge Scott M. Gordon of L.A. Superior Court Matrimonial Part should strike this agreement as unconscionable, and give Jamie a 50% share of the value of the asset pursuant to California’s community property laws.
Other news outlets are reporting that legal experts think Jamie has a good chance of winning her case. We wish her luck.  She may want some tips on how to attack a post/pre nup. Here’s a good post on that:

How to attack a prenup or post-nuptial agreement

Follow us on twitter to get all the juicy divorce news of the rich, famous and newsworthy: www.twitter.com/divorcesaloon