Prenuptial agreements are common for couples preparing to tie the knot when one (or both) have something to protect in the event of a divorce. As a matrimonial lawyer in New York City, I have seen and drafted quite a few. To my knowledge, however, such agreements have never been used by a political party preparing to get hitched to its presidential nominee. But, of course, there has never been a "marriage" quite like the one the Republican Party is about to consummate.
The Republican Party is preparing to wed Donald Trump in a "ceremony" to be held in Cleveland on July 18. The Party appears to be quite apprehensive about entering into this union, which is understandable. Trump has had so many failed ventures, the Party has plenty to be concerned about. After all, each time Trump did quite well for himself, while leaving his former partners and others holding the bag.
Trump's presidential bid is no different. If it ends in a fiasco, Trump will be just fine. He is not spending much of his own money on his campaign, and he will undoubtedly emerge with even more notoriety and celebrity, something he clearly values and craves. The Republican Party, on the other hand, has already suffered quite a bit from Trump's presidential ambitions, and may sustain even more, and longer lasting, damage.
In light of all this, it appears that the Party officials would be well served by taking a page out of Trump's book and insisting on a prenuptial agreement. Trump himself is notorious for never marrying without one. "An ugly instrument, but they'd better have one," Trump told New York Magazine in 2002.
Prenuptial agreements can be useful in giving the spouse with the most to lose in case of a break-up more protection than the law would otherwise provide. Trump successfully used prenuptial agreements to greatly limit what each of his wives received in divorce. Trump's first wife, Ivana Zelnicek, after an unsuccessful challenge, reportedly received a total settlement of $25 million, despite Trump's allegedly multi-billion-dollar fortune and despite being married to Trump for more than 10 years. Trump's second wife, Marla Thompson, fared much worse and reportedly received no more than $2 million, as Trump ended the marriage weeks before the fourth wedding anniversary after which Marla would have been entitled to a hefty settlement.
But what would a prenuptial agreement between the Republican Party and Trump provide?
Prenuptial agreements protect the assets with which a person enters into a marriage. In addition, they commonly address distribution of marital property, entitlement by one party to receive spousal support and the parties' rights to inherit the property of the other after death.
Clearly, the first priority for the Republican Party would be to protect its separate property with which it is entering the "marriage." The main asset the Party needs to protect at this point is whatever dignity it has left. Although there may be little of it, it is obviously important to try to preserve it. Thus, the Party would be well advised to insist on an agreement that Trump will no longer call its leaders "ridiculous," "pathetic," "hypocrites," "morons," and otherwise not humiliate and belittle them.
In return, and to ensure the enforceability of this agreement, the Party should allow Trump to preserve his separate property. Clearly, the most valuable asset with which Trump is coming into the "marriage" is his name. Thus, under the agreement, Trump should retain the right to continue to be known as "Mr. Trump." In addition, the agreement can provide that after the Convention, the party officials will no longer call Trump a "nutjob" (Lindsey Graham), a "fraud" (Mitt Romney), "a jerk" (Jeb Bush), "a pathological liar" (Ted Cruz), and "a carnival barker" (Chris Christie).
The next issue this agreement will need to address is the division of assets acquired by the Republican Party and Trump during their "marriage." The increase in the value of one spouse's separate property, when due to the efforts or contributions of either spouse, are often considered marital property and are subject to distribution between the parties. It is hard to see how the dignity of the Republican Party can increase in value during its marriage to Donald Trump, so the Party can safely leave that alone.
The Trump name, on the other hand, will undoubtedly increase in value, especially among certain groups of voters (i.e., "uneducated older white men"). Therefore, the Republican Party should insist that the increase in the value of Trump's name be treated as "martial property" and be distributed between the parties in the event of a break up. Thus, although Trump will generally retain the right to continue to be known as "Mr. Trump," it would be advisable for the Republican Party to negotiate the right to use the Trump name for a number of years on its buildings and in any kind of electioneering with the core Trump supporters, by, for example, putting the name on baseball caps, universities (as long as they confer no recognizable degrees), and campaign materials. In addition, the Republican Party should negotiate the exclusive right to use, in any future election, the phrase "it's going to be a beautiful thing" to print on balloons for future rallies.
In terms of the spousal support the Party will receive from Trump, it should certainly demand that Trump turn over his main advisors, including Corey Lewandowsky (one of the best campaign managers universally loved by all, especially the press) and Chris Christie (not only a brilliant politician as demonstrated by his own presidential bid, but also currently one of the most popular governors in history).
Finally, in the event the Republican Party outlives Trump's presidential bid, the party should make sure Trump agrees that he will never ever (ever!) run for President again, because even if the Republican Party manages to survive this marriage once, it may not be so lucky the second time around.