It seems like there’s a new celebrity divorce in the news every day. Today it’s Mel Gibson’s. He and wife, Robyn Denise Moore, are divorcing after a 31-year marriage and seven children together. Gibson wasn’t famous when he married Moore, and the two had no prenuptial agreement. Now, his $850 million fortune will be divided equally between Gibson and Moore. The $425 million Gibson will pay Moore is reportedly the most of any divorce in Hollywood history.
The $425 million figure Moore will receive is actually understated. Moore will also receive 50% of any profits Gibson’s existing films earn in the future. And when Moore dies, her estate / heirs will continue to receive these residual film profits.
Is it fair for Moore to continue to share in the future profits from Gibson’s films? I suppose fairness is a matter of opinion, but under the law it is certainly the proper result. In a community property state where the divorcing spouses have no prenuptial agreement, the assets acquired during the parties’ marriage are divided substantially equally between the parties. But it doesn’t stop there. The “equal” division includes assets amassed during marriage, but it also extends to future earnings on assets created during marriage.
In Mel Gibson’s case, the work product (films) Gibson created during the marriage is essentially owned equally by Gibson and his wife, Robyn Moore. If those during-marriage creations generate income in the future, it is only right that Moore should share equally in those future earnings. The same principle applies to other kinds of during-marriage creations that may generate future income. Future royalties from a book written or a product invented by one spouse during marriage would also be equally divided during a divorce.
In hindsight, I suppose Mel Gibson now sees he should have entered into a premarital agreement with Moore before they married. But at the time, who knew? Mel Gibson wasn’t even on the map back then. Moore could just as easily have been the one who became famous and earned hundreds of millions of dollars, and if that had happened, Gibson would be the one benefited now from the couple’s decision to forego a prenup.
Mel Gibson’s divorce case is certainly a reminder to consider a premarital agreement before tying the knot. A more significant lesson from the Gibson/Moore divorce, however, is to evaluate in every divorce case the future income which may be generated by assets created or acquired during marriage. That future income potential is an additional asset which must be divided between husband and wife to arrive at a fair division in the event of divorce.
Copyright © 2011 by Scoresby Family Law – J. Kyle Scoresby, P.C. All rights reserved.