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Donald Trump Jr.’s Divorce Won’t Truly Be Uncontested: An Explainer

Thu 22 March 2018 News Releases

By Valentina Shaknes – New York Daily News

Divorce is tough. But a Trump divorce? That’s a shimmering gilded tower on the divorce hill.

That is why although Vanessa Trump filed for an “uncontested” divorce from Donald Jr. last week, the public should expect everything but uncontested. Legally speaking, “uncontested” simply means that no judge has been assigned to the case yet, giving the parties a chance to resolve things out of the public eye via their attorneys.

As if the ideas of “out of the public eye” and “Trump divorce” could ever co-exist.

So, what do we know about this divorce? Well, first there’s sure to be a prenuptial agreement.

“An ugly instrument, but they’d better have one,” Donald Trump the father famously told New York Magazine in 2002. That agreement most likely contains substantial confidentiality provisions — perhaps not unlike the provisions in the Stormy Daniels’ non-disclosure agreement.

A prenuptial agreement will likely make the financial terms of their divorce simpler and more streamlined, though it will hardly make it uncontested. Prenuptial agreements typically address financial issues in a divorce, including division of property and spousal support.

It is almost certain that Vanessa has waived any interest or claim she would have had to the Trump family businesses and fortune, all of which will mostly likely remain Donald Jr.’s “separate property.” In exchange for the waiver, Vanessa will likely receive a large sum of money, as well as a nice place (or multiple places!) to live with the parties’ five children. Their agreement likely also includes provisions for hefty spousal support for Vanessa, possibly avoiding the need for litigation on that issue.

Prenuptial agreements also commonly provide for division of the property the couple acquired during their marriage. However, even with a prenuptial agreement, division of property is rarely easy and almost never truly uncontested. I have seen couples who have a lot less than Donald and Vanessa fight to the bitter end about things that are worth a lot less than what’s at stake in the Trumps’ divorce. One couple could not agree on who gets to keep the dining chairs and ended up having to start a trial just because of that.

But the prime reason that the Trumps’ divorce may not be uncontested has to do with their five young children. The Trumps’ prenuptial agreement is unlikely to provide for anything related to their children, leaving all of the parenting issues (as well as determination of child support) wide open. And although Donald Jr. and Vanessa were married at Mar-a-Lago in Florida, it is likely that their prenuptial agreement would be governed by New York laws, considering that they intended to reside here.

In New York, any provisions for custody, parenting time or child support in a prenuptial agreement are unenforceable and are deemed to be against public policy. As a result, most matrimonial practitioners will not even include any such provisions.

Of course, this isn’t the Trump family’s first divorce rodeo. Trump’s lawyers may well have taken strides to include some (or all) of these child custody-related provisions in the prenup. However, included or not, these provisions are highly unlikely to be enforced by a New York court because the courts consider what is in the children’s best interests, not what the parents may have agreed to before the children were even born.

Thus, unless Donald and Vanessa come to a quick agreement now on who will make decisions for their children and how their parenting time would be scheduled, even with a prenuptial agreement, their divorce will not be uncontested.

While the documents filed in matrimonial actions are kept private and confidential, the courtroom proceedings are open to the public — and that would mean unwelcome publicity for the couple who has been thrust into the public light since Donald’s father became President.

That fact gives Vanessa and her attorney’s incredible leverage. To avoid more scrutiny and more publicity, Junior would likely have to be a lot more generous and accommodating than he or his father have ever intended to be.

It is well known, however, that the father was not generous at all to his former wives. So I would not bet on this supposedly uncontested divorce going away quietly.

Shaknes is matrimonial attorney and partner at McLaughlin & Stern, LLP.