The Attorney’s Role in a Prenuptial Agreement
Reviewed and approved by Kathryn Wayne-Spindler
The first order of business regarding a prenuptial agreement is for an attorney to gather the wants of a client and determine if these can be accomplished. Television and movies make it seem like anything and everything is up for negotiation when it comes to a prenuptial agreement, therefore client’s in real life tend to think that way. This is not always the case. Prenuptial agreements are not made to control the future conduct of a spouse. Prenuptial can not control personality and behaviors. They can only really outline asset and debts and division.
Finding out what a client was can be done in a private email or consultation. In many cases, a person does not just wake up and decide that they want a prenuptial agreement, it is something that has been thought about. This is a big part of the process in drafting the right document for each person.
For the attorney, outlining the goals can help accomplish things such as seeing if a client would be happy with an enforceable prenuptial agreement, discussing issues with the client that could possibly invalidate the agreement, and determining the character of assets and items that do not need to be included in the prenuptial agreement. We are always upfront about whether the goals can be completed and if it is the right case for a prenuptial.
The attorneys priority should always be the end result when beginning to draft the prenuptial agreement. The end result should include an analysis of how the prenuptial agreement will be interpreted by the parties and a Judge if it is called into question. Judge’s will often look for a simple, clear solution when looking at and interpreting a prenuptial agreement.
Prenuptial agreements should be drafted to express the intent in clear and to the point language. Making sure that the document is able to be understood by others is important to ensure that the agreement has a higher chance of being enforceable. Anyone who is working on the prenuptial agreement should be able to draft in clear, succinct language.
How The Court Sees Prenuptial Agreements
Judges do not interpret prenuptial agreements everyday. Although, they do interpret contracts on a regular basis. With that being said, an attorney should have a peer in the legal field schooled on prenuptial agreements review the agreement before it is signed.
A judge is looking for clear, simple language that details out the intentions of the parties. If the agreement is found to be poorly drafted and/or ambiguous, there is a high risk that the judge will rule the agreement to be voided. In the case of a voided agreement, the assets would be divided how the court sees fit, which could be completely against the wants of the client.
A prenuptial agreement must satisfy the requirements of the state in which a person resides and meet certain judicial criteria before a court can enforce the agreement. In the state of Michigan, the state law does allow the enforcement of a prenuptial agreement.
No court will enforce a prenuptial agreement or any agreement that was obtained through duress, fraud, or mistake. Therefore, prenuptial agreements should be executed well in advance of the wedding date to ensure the avoidance of duress or undue influence. It can be an awkward conversation to have with a fiancé, but to protect oneself, it should be done sooner rather than later. Waiting to present or even talk about a prenuptial agreement until a week or two before the wedding can cause issues if it is ever called into question by the court. Giving the agreement to a partner with substantial advance notice gives the partner a chance to review it and have their own attorney review it if need be. This should be encouraged. This can help alleviate the argument that the partner did not have sufficient time to review and negotiate the document.
Full disclosure of all assets is a must when drafting a prenuptial agreement. This is where the most problems arise because the client has not disclosed or told their partner the entire story, or the client wants to diminish the financials in order to get their partner to sign. Failing to disclose all assets can end in the invalidation of the agreement.
Offering three to five years of tax returns can also help with enforceability because it is hard to invalidate the agreement when the partner had the full financial picture before them.
An unconscionable prenuptial agreement will not be enforced. Ensure that the other party is well represented in order to avoid unconscionability arguments. Even if the other party does not want an attorney, encourage them to obtain counsel. This can help ensure the enforceability of the agreement.
The attorneys at Kathryn Wayne-Spindler & Associates are experienced attorneys who change with the times to meet the needs of their clients. Contact the Milford, Michigan law office of Kathryn Wayne-Spindler & Associates at 248-676-1000 for assistance. The attorneys of Kathryn Wayne-Spindler & Associates practice law throughout Southeastern Michigan including Oakland, Wayne, Washtenaw, Genesee and Livingston counties as well as four mid-Michigan counties Clare, Gladwin, Ogemaw and Roscommon. The attorneys handle cases in Milford; Highland; Hartland; White Lake; Wixom; Commerce; Walled Lake; Waterford; West Bloomfield; Linden; Fenton; Flint; Grand Blanc; Holly; South Lyon; New Hudson; Howell; Clare; Gladwin; Houghton Lake; Higgins Lake; and many more Michigan communities. And soon to be opening another office in Dadeville, Alabama.
For more information, please see articles “Prenuptial Agreement: Can You Make It Enforceable & Keep your Client Happy? Part 1” and “Nuts and Bolts of Enforceable Prenuptial Agreements – Part 2” by David Matthews on www.familylawyermagazine.com