Publication: The Bar Association of San Francisco Bulletin: Volume 6, Number 7
The ending of Arnold Schwarzenegger and Maria Shriver’s marriage has captured the public’s attention, not only because they were a political “odd couple,” but because of the revelations that Schwarzenegger had a child with a member of his household staff and kept this fact a secret for over a decade. Given the number of questions we have received regarding Schwarzenegger and Shriver, rather than address a single issue in this column, we are going to answer as many questions as we can:
Is There a Pre-Nuptial Agreement and Does That Matter?It is still unclear if there was a pre-nuptial agreement. Even if there were an agreement, given that the parties have been married for 25 years, it is questionable how enforceable the agreement would be. The law regarding pre-nuptial agreements changed considerably in the last ten years. In response to the holding in In re Marriage of Bonds (2000) 24 Cal.4th 1 (yes, that is Barry Bonds), the Legislature made numerous changes to the signing requirements for a pre-nuptial agreement and it is questionable if all the terms of an agreement from 25 years ago would be enforced today.
Does Schwarzenegger owe Child Support for This Child he had With his Staff Member?It appears that he is not the legal father, so the answer is no. The child’s mother listed her husband as the father on the birth certificate (presumably with his consent since he did not request blood tests as far as we know), and he is also presumed to be the father if he is the husband of the child's mother and is not impotent or sterile and was cohabiting with her—see Family Code Section 7640.
Can the Staff Member Have Schwarzenegger Declared the Legal Father?Not if the husband of the mother is the presumed father, which he appears to be. Family Code Section 7541 creates a 2-year period following a child’s birth within which the husband of the birth mother or the putative biological father may ask for blood tests to rebut the presumption.
What can Shriver do About Schwarzenegger’s Behavior?California is a no fault state. This means that if a party commits adultery, this fact is not taken into account in the division of assets or the determination of support. However, Shriver could seek reimbursement for “gifts” (Family Code Section 1100(b)) or debts incurred that were not for the benefit of the community (Family Code Section 2625). She could also claim that Schwarzenegger breached his fiduciary duty to her regarding expenses paid relating to this child (Family Code 721).