Most prenuptial agreement litigation is driven by these three factors: The seemingly ubiquitous lack of independent representation for both parties; a claimed or actual lack of full and complete disclosure of assets; and the “threat” of calling off the impending nuptials if the agreement is not signed.
To prepare an agreement that will withstand these inevitable challenges, you must do your homework. Here are 5 tips from family law veteran Rory T. Weiler, author of Divorce Tools & Techniques, to help you write prenuptial agreements that protect your clients (and yourself).
The 60-Day Rule. There is very little to be gained from a last minute agreement to review or draft a prenuptial agreement, except an opportunity to hone your skills drafting letters to protect yourself from liability to your former client in a subsequent malpractice case. The best approach is often to just say no, and let one of your ill-informed colleagues take the assignment. In my practice, the first question I ask is “When is the wedding?” If the answer is less than 60 days away, I politely decline.
Never Agree to Dual Representation. Acting as the only attorney involved places you in the uncomfortable position of appearing to serve two masters. Who among us is naïve enough to believe that if we talk to the unrepresented spouse, he or she will not assume we are providing legal advice, written protestations to the contrary notwithstanding? Therefore, no practitioner should ever consider an arrangement where he drafts a prenuptial agreement for “both of the parties,” no matter how many waivers the parties execute. It is much better to decline that engagement than it is to virtually guarantee not only litigation between the parties, but an adjunct malpractice case against the drafter (you) as well.
What to Disclose. I recommend the provision of three years’ worth of tax returns, and a specific asset disclosure that includes not only a description of the asset, but its value and any indebtedness tied to the specific asset. Commonly this would include mortgages against real estate, car loans, 401(k) plans, and the like. There can never really be too much disclosure, and I often tell my clients that if the asset is important to them, disclosing it is similarly important, no matter what the economic value of the asset might be. Therefore, assets with emotional value, like Grandma’s wedding band, should be included in the disclosure.
Protect Child Support and Maintenance From Former Marriage. If your client is entitled to receive child support or maintenance from a former marriage or relationship (some agreements provide for continuing maintenance payments after remarriage, often where the primary purpose of the alimony payment is to allow favorable tax treatment of transferred property), be sure to provide that these sums will be sequestered from the “marital” estate, or subject to reimbursement for the contribution of same to the marital estate.
Memorialize Negotiations. No matter how the negotiations go, it is a good idea to memorialize the sum and substance of your negotiations in a letter to your client prior to the execution of the agreement. This will protect you from claims made years down the road as to why this was or was not done, as I can guarantee you that when another lawyer asks your client why she signed this agreement, her answer will be, “My attorney told me to.”
Rory T. Weiler, of Weiler & Lengle, P.C., St. Charles, Illinois, concentrates his practice in family law, with an emphasis on cases involving child custody and more complex economic issues. Mr. Weiler is a fellow of the American Academy of Matrimonial Lawyers. He is active in his local community, as well as the Kane County and Illinois State Bar Associations. He has authored numerous articles on family law topics, and has lectured extensively on a broad range of topics, including child custody litigation; financial issues in divorce; and trial practice. Mr. Weiler’s book Divorce Tools & Techniques provides proven tactics for handling the common issues and complex problems that you will encounter in your family law practice.