Custody and Property Division Issues in the Brangelina Divorce

By: Hossein Berenji
Last Update: February 02, 2017

While property division is fairly well-settled in this instance, both Brad Pitt and Angelina Jolie appear to be gearing up for a child custody fight.

Jolie filed for divorce almost immediately after abuse allegations against Pitt first surfaced; according to some sources, she apparently believed this aggressive approach would force her estranged husband to accept whatever terms she offered. However, those abuse allegations may have been exaggerated. Pitt has willingly sought court-ordered treatment and counseling, and he has demanded joint custody in court papers.

As for the couple’s extensive marital estate – said to be worth about $400 million – Pitt and Jolie signed a prenuptial agreement that divides this property.

Joint Custody

Until the late 19th century, women had virtually no political or economic rights, and so when a couple divorced, any children stayed with the husband, because the wife effectively had no standing to challenge the legal proceedings and probably no way to support the children economically, since child support was unheard of in those days. Then in the early 20th century, the Industrial Revolution and World War I changed society in ways that it is hard for us to understand, especially with regard to women’s economic and political rights.

At about that same time, some psychologists began promoting the so-called tender years doctrine, which basically held that fathers were incapable of caring for young children of tender years. The stereotype of the “breadwinning” spouse and “caregiver” spouse fed this idea, especially because in those days, the breadwinner was almost always the husband and the caregiver was almost always the wife. If that America ever existed outside television and movies, it is gone now, because less than half of American children live in a “traditional” family setting with a married mother and father who have never been married to anyone else and only share their house with their pure biological children.

In response to these changes, most states now have joint custody laws. However, these laws typically only refer to legal custody, such as the right of ongoing access to the children, the right to attend significant events in the children’s lives, and the right to participate in important decisions. Truth be told, many lawmakers probably supported these provisions simply to placate angry constituents who were upset about the supposed ill effects of no-fault divorce.

However, California, for example, is a pure joint custody state, so in most cases, parents share equal time with their children. Some common time-sharing models include:

Alternating 2-3-2

The children spend Monday and Tuesday with Parent A; Wednesday, Thursday, and Friday with Parent B; and Saturday and Sunday with Parent A. The next week, the A and B parents switch days. This arrangement is probably the most common time-sharing model in California, despite the fact that there is an awful lot of coming and going.

Empty Nest

This idea is starting to catch on. Instead of the children going back and forth between households, the parents go back and forth between households. The children benefit because they never have to leave comfortable surroundings. However, the empty nest arrangement obviously only works if the parents have a fairly cordial relationship and respect one another’s privacy.

Extended Weekend

The children stay with Parent A most weekdays, and spend Thursday-Sunday or Saturday-Monday with Parent B. The time allotment is unequal and there may be other drawbacks, but sometimes, it’s the best possible joint custody arrangement.

The landscape changes tremendously if pure joint custody is not in the children’s best interests, primarily due to prior domestic abuse or ongoing parental unfitness issues with either party. In these cases, most judges limit contact between the parent and children, because termination of parental rights is quite rare.

Premarital Agreements

Spousal agreements are not just for rich celebrity couples. Money is one of the leading causes of marital stress, so making financial decisions before the marriage removes a major potential source of conflict. Moreover, premarital agreements are very useful if stepchildren are involved, because couples can make decisions about inheritance and succession rights and duties before emotion clouds their judgment.

Like almost all other jurisdictions, California has adopted the Uniform Marital and Premarital Agreements Act. Under this law, property agreements may cover almost anything other than child custody, child support, or any other similar area that is against public policy. To break such contracts, the challenging party must show that the agreement was:

  • Involuntary: Unless these is physical coercion akin to kidnapping, most courts will not consider an agreement that both parties signed to be involuntary, especially if they were both represented by separate counsel.

  • Unconscionable: There are two ways to prove unconscionability in this context. First, the challenging party can show that the other party withheld critical financial information; second, the challenging party can show that the terms were grossly uneven when the pact was signed.

The Frank and Jamie McCourt divorce is a good illustration of how this all works. When the owners of the Los Angeles Dodgers broke up, the team was in bankruptcy and essentially worthless, so Jamie McCourt signed away her half of the team in exchange for about $200 million in cash and property.  A short time later, Frank McCourt sold the Dodgers for just over $2 billion, and Jamie McCourt went to court to overturn the property agreement. However, the judges ruled that Frank McCourt did not withhold information and that the agreement was not unconscionable when it was made.

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