Legal Q&A: Major Reasons Why Luann de Lesseps Should Sign a Prenup Before Marrying Her Cheating Fiance!

The Real Housewives of New York’s Luann de Lesseps had her fun with “The French Johnny Depp” in the Caribbean and, to a greater extent, David Schwimmer’s doppelganger Jacques Azoulay. Now she wants to marry a man Bethenny Frankel revealed to be a cheater.

Yet Luann seems pretty sure in her convictions that Tom is the right guy for her. Considering that both Luann and her fiancé, Thomas D’Agostino Jr., bring significant money to the marriage, this is Luann’s second marriage, and knowing that Luann didn’t care for her open marriage to the Count (Alexandre de Lesseps), a prenuptial agreement might serve them both well, especially as infidelity charges run rampant. The best candidate for a prenup is one with substantial assets and those going into a second marriage.

When asked whether or not Luann was planning on negotiating a prenuptial agreement before saying her vows, she told Jenny McCarthy on Dirty, Sexy, Funny with Jenny McCarthy.

“Well, you know he’s a very accomplished person. I have two children and a lot of assets so we’ll definitely have a prenup. What’s yours is yours and what’s mine is mine.” Luann has a good head on her shoulders: She understands there is a case to be made for prenups.

The reality is, many marriages end in divorce, and there are assets to be distributed. While it isn’t necessarily romantic to negotiate a prenuptial agreement during one’s engagement, doing so can save a lot of heartache and prolonged, vicious court battles.

More than 50 percent of first marriages end in divorce, and over 70 percent of second marriages do. The divorce rate in New York State is nearly eight times higher than the national average, according to New York Magazine.  This is why it is essential for couples to negotiate the financial terms of their marriage. They can determine bill paying, earnings, career goals, short- and long-term financial goals, estate planning, how income taxes are to be paid, how a pension will be shared, who will pay to defend a tax audit, and who will pay for expenses in the case of a divorce before saying their vows.

Wedding Bells

“It’s planned for New Year’s Eve in Palm Beach. It’s also Tom’s 50th birthday so it’s a very big night. Tom’s never been married [and] it’s New Year’s, it’s his birthday, it’s our wedding—it’s a big day celebration,” Luann told a reporter.

The original cast member of The Real Housewives of New York said she expects over 200 guests to join her and Tom during their 3-day Palm Beach, Florida wedding. She is not sure which housewives will be invited.

The two became engaged in February when D’Agostino proposed with an eight-carat canary yellow diamond ring. How can the couple make the best out of a situation should the marriage go kaput?

How It Works

Money can’t buy you class, but it can buy you a good prenuptial agreement. Most states have accepted the validity of prenuptial agreements, including New York and Florida. Prenups are good because they preserve the expectations of the parties and prevent surprises in a divorce trial.

A prenup is a contract between two people contemplating marriage whereby the property rights and economic interests of either prospective spouse are determined and set forth in a legally enforceable contract. Prenups can provide for spousal support, property distribution, and inheritance rights in the event of marital dissolution. 

Prenups are becoming increasingly common. They formalize the understanding between spouses-to-be as to which of their assets will become marital property, which will continue to belong to whom individually, and, in the event of a breakup, what financial provisions are to be made. One of the most obvious ways of minimizing possible foreseeable problems after a marriage is a prenuptial agreement. 

Obviously, fortunes change over the course of a lifetime, and parties may want to amend or even terminate the original prenuptial agreement. Prenups can and should specify that the agreement may be modified in a prescribed manner.

Their Assets

Yours, mine, and ours: Luann and Tom should sweat the small stuff, like furniture, jewelry, and pension plans. If Luann or Tom brings substantial debt to the marriage, the prenuptial agreement can state that the debt stays with that spouse.

Premarital contracts may address financial considerations, such as division of property (what is considered separate versus marital property) and support payments upon death or divorce.  A prenuptial agreement can establish maintenance during the marriage as well as what kind of support Luann or Tom will pay to each other after a divorce.

Tom founded Smart Source LLC in 2003, where he serves as president and CEO. Smart Source is a company that provides a service to businesses looking for commercial and promotional marketing materials. In addition to his duties at Smart Source, he also has a spot on the Board of Directors of VitaPet Inc., a veterinary pet healthcare company.  Tom allegedly has homes in New York City and West Palm Beach, Florida.

It has been reported that Countess Luann de Lesseps is worth anywhere from $5 to $20 million. According to Celebrity Net Worth and Page Six, Luann’s fortune stems from her Real Housewives wages, divorce settlement, her recording career, jewelry line, clothing line, fashion modeling, her Class with the Countess: How to Live with Elegance and Flair book earnings, and money received from endorsements and appearances.

Her union with Count Alexandre de Lesseps, an investment banker and entrepreneur with a royal title, no doubt helped her acquire significant funds and a lifestyle to which she has become accustomed. Alexandre is worth an estimated $50 million. 

“When we separated he gave me assets, and he kept his certain assets, but he was generous. And so, you know, I feel like I was very lucky. I mean, I was married to a wonderful guy for 16 years. I have two great children. We still have a great relationship…Then I met Tom [and] I feel really lucky I get a second time around,” Luann explained to Jenny McCarthy.

Home sweet home: In 2014, Luann’s Hamptons home sold for $8 million, as per the real estate publication, Curbed. The original asking price was $9.9 million. Thereafter Luann bought a 2,500-square-foot Sag Harbor waterfront home (which has been featured on RHONY) for $3.1 million.

New York is one of only a few states to allow potential future earnings tied to professional licenses or partnerships or degrees to be deemed marital property. Tom may want to execute a prenup that specifically keeps his company out of the matrimonial mix.  A prenuptial agreement can protect business assets and prevent Luann from acquiring a business interest in a company which she did not help build. 

The idea is that both Luann and Tom may want to avoid the risk of a major loss of assets, income, or a family business in the event of a divorce. For people marrying for a second time, there may be a desire to make sure that a majority of assets or personal belongings are passed on to the children of prior marriages rather than a current spouse.

While Victoria and Noel are probably provided for handsomely, Luann may want some personal items, like jewelry, paintings, family heirlooms, and photos, to go to her kids instead of Tom. Luann can and should protect her children in the prenup if that is something that is important to her. 

Enforceability

Some people prefer to control their fiscal relationship rather than to leave it to state regulation. Prenuptial agreements are presumed to be valid and to reflect the intentions of the parties, even if the terms turn out to be a bad deal for either one. The prenuptial agreements are usually strictly construed, because they are in derogation of common law and of statutory law. 

Courts will recognize a valid prenuptial agreement that may be different from how New York law would divide the property if such an agreement had not existed. The prenuptial agreement takes the control over a couple’s property and assets away from the state and places it in the hands of the spouses.

Save the date: New York does not set a specific time at which prenuptial agreements must be signed because the law recognizes marital agreements made either before or during the marriage. Generally, it is better to negotiate and sign the agreement well before the wedding, to show that each person has considered it carefully, and signed it voluntarily. When spouses try to challenge the validity of a prenup, the court will normally look to see how soon before the wedding it was negotiated and signed.  Prenups signed a short time before the wedding can impact the agreement’s enforceability.

People should go into the prenuptial agreement negotiations knowing and understanding the terms. The agreement must be in writing, signed, and properly executed by the parties. The agreement also must be fair and reasonable at the time of the making of the agreement. An agreement is likely to be invalid on the basis of fraud if one person deliberately misstates his or her financial condition or hides assets. Similarly, if one person exerts excessive emotional pressure on the other to sign the agreement, a court might proclaim the agreement to be unenforceable because of duress.

Several factors can raise eyebrows for divorce court judges, such as so-called lifestyle provisions in the prenup about weight gain, frequency of sexual relations, and visits by in-laws. Those are unlikely to hold up in court.

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