When celebrities like Jennifer Lopez allegedly file for divorce without a prenuptial agreement, it’s not just tabloid fodder—it’s a cautionary tale for anyone with substantial assets.
Lopez’s high-profile split from her husband, Ben Affleck, offers a unique lens to explore the legal and financial risks of skipping a prenup, especially in a community property state like California.
In this article, we break down the real-world implications of not having a prenup, supported by original data and expert insights.
The Legal Ramifications of Divorcing Without a Prenup
Our data reveals a significant trend: prenuptial agreements have surged by 32% from 2022 to 2023, underscoring their growing importance in simplifying divorce proceedings.
So, it’s surprising that Jennifer Lopez and Ben Affleck, despite having teams of business managers, accountants, and attorneys who typically advise on asset protection, reportedly chose to forego a prenup. [1] Here are the implications:
Asset Division Complexity
Wealthy couples often have complex portfolios, including real estate, stocks, businesses, and intellectual property. Take Lopez and Affleck, for instance. Lopez has an estimated $400 million net worth [2] , while Affleck has an estimated $150 million net worth. [3]
Without a prenup, these assets are subject to state divorce laws, which may result in an equal division that overlooks each party’s contributions.
In states like California, community property laws mandate a 50/50 split, regardless of who earned what. This division can lead to extended legal battles and substantial wealth losses due to court-mandated distributions and high legal fees.
A Trend Away from Defaulting to State Laws
Couples who complete prenups are showing a trend away from defaulting to state laws. Our data reveals a notable one percent decrease in couples defaulting to state laws year over year from 2021 to 2024 (53%, 52%, 51%, and 50% for 2021, 2022, 2023, and 2024, respectively).
Alternatively, couples decide to divide marital property by percentage contributions throughout the marriage.
Increased Potential for Conflict
Without a prenup, disputes over asset valuation and division become more likely. Data shows that 70% of couples with prenups agree on how to split their marital home if they separate, while those who don’t make this decision beforehand must resolve the issue in court.
How Couples Split the Marital Home
Of the couples who decide on the split of the marital home if they get divorced, 45% decide to classify the home as shared marital property, while 45% classify it as the first party’s separate property. The remaining 10% classify it as the second party’s separate party.
In Lopez and Affleck’s case, the lack of a prenup means their substantial assets will be divided under California’s community property laws. This underscores why having a prenup is essential for protecting wealth and minimizing disputes.
No Ramifications for Infidelity
If Lopez and Affleck had filed a prenup, they could have included clauses for compensation in the event of either party cheating. Rumors have surfaced that a potential relationship between Affleck and Kick Kennedy catalyzed the divorce. Even though Affleck’s spokesperson put the rumor to rest, [4] these rumors raise a unique benefit of prenups.
Mentions of Infidelity in Prenups
Our data reveals that 33% of couples writing prenups include additional clauses. Of this group, 11% mentioned infidelity in their additional clauses in 2024. This is a notable increase from the 7% that mentioned infidelity in 2021.
This data shows that people are considering infidelity in their prenups, often demanding that the adulterer forfeit their claims to certain assets or pay a financial penalty to the other party.
The Role of Court-Ordered Financial Disclosures
In the absence of a prenup, the Los Angeles County Superior Court required Lopez and Affleck to disclose all their financial information, including income, expenses, and debts. [5] These disclosures are crucial for determining the final settlement and maintaining fairness and transparency.
Here’s a closer look at how these disclosures impact the divorce process:
Influencing the Distribution of Assets and Liabilities
The financial disclosures from both parties directly influence how the court distributes assets and liabilities. Without a prenup to guide the process, the court relies on these disclosures to decide who gets what. Any discrepancies can lead to adjustments that may favor one party.
Shaping the Outcome of Spousal Support and Legal Judgments
The financial information disclosed by each party also shapes the court’s decisions regarding spousal support and other legal judgments. Accurate and comprehensive disclosures ensure that spousal support is determined based on both parties’ true financial standing.
If either party withholds or misrepresents their financial information, it can result in sanctions, penalties, or even a revision of the settlement terms, impacting the divorce’s outcome.
State Laws and Their Impact on Divorce Outcomes
State laws significantly impact divorce proceedings, especially when no prenuptial agreement exists. In the case of Lopez and Affleck, their divorce filed with the Los Angeles County Superior Court will be governed by California’s community property laws. Here is what that means:
Equal Division of Marital Assets
In California, community property laws require that all assets acquired during the marriage—like real estate, bank accounts, and retirement savings—be split evenly between spouses. This means a high-earning spouse may face a 50/50 division of their wealth.
Without a prenuptial agreement, the default is an equal split of marital assets, which can significantly impact high-net-worth individuals by potentially requiring them to relinquish a substantial portion of their accumulated wealth.
What If the Divorce Was Filed Outside of California?
If Lopez and Affleck’s divorce was filed in an equitable division state like Florida, Utah, or Colorado, the court would consider each spouse’s financial contributions when dividing property. Learn whether you live in a community property or equitable division state to understand how a court may view your divorce case without a prenup.
Treatment of Separate Property
In California, assets acquired before marriage are generally considered separate property and are not divided. However, any increase in value or income generated during the marriage may be treated as community property. Without a prenup, disputes often arise over the value of pre-marriage assets, especially when their value or income increases significantly.
A notable example is Gene Roddenberry’s divorce case. Initially, his ex-wife Eileen was entitled to profits from the original “Star Trek” series. As the franchise grew, legal questions emerged about her entitlement to profits from later successful sequels. [6] This case illustrates the complexities of dividing income from assets that have appreciated over time.
Spousal Support Considerations
California courts determine spousal support based on factors like marriage length, standard of living, and each spouse’s earning capacity. Without a prenup, the wealthier spouse may face significant alimony payments, especially in long-term marriages.
Our data shows that 91% of couples with prenups waived spousal support in 2024, which helps avoid lengthy disputes and prevents the court from imposing substantial financial obligations on the higher-earning spouse. This data point was a significant jump from the waiver of spousal support by 75% of couples in the three previous years.
Lopez requested that neither party receive spousal support, suggesting that she is either confident in her financial independence or is seeking to simplify the divorce process.
Prenup Agreement Trends [Infographic]
Legal Templates surveyed over 25,000 couples who created their prenuptial agreements with us from January 1, 2021, to June 30, 2024, to capture insights into what they included in their agreements. Irrelevant responses or significant outliers were excluded from the analysis.
Expert Insights: Navigating Divorces without Prenups
We chatted with Brooke Davis, our award-winning attorney here at Legal Templates, to get some expert insights into navigating divorces without prenups:
What should someone consider before deciding against a prenup?
Both partners should be comfortable with creating the prenup and fully understand the implications, legal and otherwise. Before declining to create a prenup, you should consider how it could impact the division of your assets, debts, and spousal support should you get a divorce.
You should also consider financial disparities, current family obligations, and any possible future changes in finances or circumstances.
Can I file for divorce myself?
Yes, you can file for divorce ‘pro se’ or ‘pro per,’ meaning you are representing yourself in the divorce process rather than being represented by an attorney.
However, it’s crucial to know the specific legal requirements and paperwork involved, which vary by state, to navigate your self-represented divorce successfully.
How can someone protect themselves financially if they get divorced without a prenup?
If you face a divorce without a prenup, you should gather and document all assets and debts to pursue a fair and equitable division.
You should also consider negotiating a settlement agreement with your spouse so you can maintain more control over the division of debts and assets rather than leaving it to the court to decide for you.
Does the absence of a prenup affect child custody or child support arrangements?
You cannot address child support or custody issues in a prenup. The court determines these matters based on the child’s best interests and state laws without consideration of any prenuptial agreement. Not having a prenup does not affect child custody or child support arrangements.
Final Thoughts
As more people observe the potential complications arising from Lopez and Affleck’s lack of a prenup, there could be a shift toward creating more detailed and specific agreements.
Every couple should evaluate their financial circumstances and consider getting a prenup before entering marriage. Always talk with a lawyer if you’re unsure of the legal implications of your unique situation.
