The Demise of Brangelina: Can Custody be Determined by a Premarital Agreement?

Recently, rumors of trouble in paradise for megastars Angelina Jolie-Pitt and Brad Pitt (known collectively by their media-given, portmanteau name “Brangelina”) were confirmed when the news broke that Jolie-Pitt had filed for divorce from Pitt after their twelve-year relationship, including a two year marriage. Despite their relatively short marriage, the couple has six children together with a unique parentage history.

Jolie-Pitt adopted the eldest child, Maddox, in 2002 prior to her relationship with Pitt. Jolie-Pitt adopted a second child, Zahara, in July 2005, during her relationship with Pitt. Maddox and Zahara were subsequently adopted by Pitt in early 2006. Jolie-Pitt gave birth to Brangelina’s first biological daughter, Shiloh, in May 2006. Jolie-Pitt then adopted Pax, their fourth child, in March 2007. Pax was subsequently adopted by Pitt in February 2008. Later in the same year, Jolie-Pitt gave birth to twins fathered by Pitt, rounding out their unique family with six children in total. Although Brangelina have both biological and adopted children and Brangelina never adopted a child simultaneously, they are each the legal parents of all six children.

Following news of their impending divorce, the tabloids exploded with speculation as to the cause of divorce and the status of negotiations. Just days ago, a source close to Brangelina leaked that they have an “ironclad” premarital agreement in place which details how their combined estate -  comprised of no less than 12 properties and worth approximately $400 million ­– would be distributed. There are also rumors of a so-called “infidelity clause” in the premarital agreement which affords Jolie-Pitt primary custody of the children in the event Pitt is found to have committed adultery during the marriage. Unless the premarital agreement is released to the media, there is no way to confirm whether such a term is part of the agreement. Regardless, anyone following the media coverage of the divorce should know that, regardless of what is included in the agreement, the custody of the children is still very much at issue. This is because in most states, including California, premarital agreements cannot resolve custody issues by contract. In New Jersey, a similar provision in a premarital agreement would be void as contrary to public policy.

New Jersey has adopted the Uniform Premarital and Pre-Civil Union Agreement Act which governs premarital agreements. The Act requires that all premarital agreements be signed and in writing in order to be enforceable. Moreover, it governs what terms a premarital agreement can address, including:

a. The rights and obligations of each of the parties in any of the property of either or both of them whenever and wherever acquired or located;

b. The right to buy, sell, use, transfer, exchange, abandon, lease, consume, expend, assign, create a security interest in, mortgage, encumber, dispose of, or otherwise manage and control property;

c. The disposition of property upon separation, marital dissolution, dissolution of a civil union, death, or the occurrence or nonoccurrence of any other event;

d. The modification or elimination of spousal or one partner in a civil union couple support;

e. The making of a will, trust, or other arrangement to carry out the provisions of the agreement;

f. The ownership rights in and disposition of the death benefit from a life insurance policy;

g. The choice of law governing the construction of the agreement; and

h. Any other matter, including their personal rights and obligations, not in violation of public policy.

The parties to a premarital agreement cannot, however, contract away children’s rights, including the right to child support and the child’s right to have custody determined based on the best interests of the child. Provisions which adversely affect the child’s right to support are expressly prohibited by the Act. Predeterminations of child custody would be void as a matter of public policy.

The parties can, however, contract to afford children greater rights than they are entitled to under the law. For example, a premarital agreement can require one party to pay greater child support than the minimum required by the child support guidelines. Therefore, provisions related to children can be included in the premarital agreement so long as they do not diminish the children’s rights. 

Understanding the enforceability of certain terms in a premarital agreement is helpful when deciding which provisions are worth bargaining for. In short, vigorous negotiations over child custody in a premarital agreement would be futile, as such a term is unenforceable and the best interests of the child govern any custody determination.

The high profile divorce usually lends itself to a good case study for the public and attorneys alike.  We intend to follow the untangling of this union and will keep you posted of our analysis regarding the legal issues that may be raised.


 Katherine A. Nunziata is an associate in the Family Law Practice Group of Riker Danzig Scherer Hyland & Perretti LLP and a contributor to the Riker Danzig Family Law Blog. Katherine’s interest in family law stems from a desire to help others while navigating a difficult process, and she brings a high level of compassion and zeal to her practice. Katherine is a resident in the Morristown, New Jersey office and can be reached at 973-451-8445 or knunziata@riker.com