Familiarize yourself with the law
- Uniform Premarital Agreement Act has been adopted by most states and governs a prenuptial agreement between prospective spouses contemplating marriage.
- Effective upon marriage
- If the state you live in does not have statutory authority, make sure you are informed of relevant case law governing drafting, negotiations, and execution of such agreements
- Notify clients that ask to make a prenuptial agreement in violation of case law, statutory law, or public policy
The Prenuptial Process
- At the initial meeting, educate the client about his or her rights with and without an agreement and the pros and cons of various provisions in an agreement
- Advise client of the limitations of the agreement
- Consult other attorneys, such as an estate attorney, if things of those nature are involved
- Encourage clients to discuss each and every provision with you after each draft
Document, Document, Document
- For liability purposes, the importance of thorough documentation during the prenuptial process cannot be overstated.
- Advise clients when hired that the file may ultimately become discoverable if a lawsuit to invalidate the agreement is filed
- Agreement should contain a choice of law clause addressing which state law is to be followed, irrespective of the clients residence when a dissolution action is initiated
Financial Misrepresentations
- There is no such thing as too much financial disclosure
- Exhange more, rather then less, to avoid an allegation of financial fraud
- Discuss with your client the idea of including a confidentiality provision in the agreement to protect against the disemination of sensitive information to third parties
Consider Withdrawing
- If it is apparent that a client is under duress, consider withdrawing
- If your client has been advised by her soon-to-be spouse that without an executed agreement the wedding will not take place, that the child will be born out of wedlock, or that out-of-town family and friends who have arrived for the wedding will be turned away, contemplate withdrawing.
- Notify opposing counsel in writing of the apparent duress and provide suggestions on how to overcome the problem
- Advise your client if an agreemetn is patently unfair and adverse to his or her interests
- If you do not receive adequate financial disclosure from the financially able party, notify your client in writing as to why additional disclosure is necessary
Can I Close the File?
- Do not expose yourself to a possible malpractice claim by failing to follow up on outstanding issues
- Advise the client to follow through with the execution of obligations created by the prenuptial agreement after the parties have married
No Comments
Leave a comment