This Blog contains the opinions of practitioner Christie L. Coleman, Esq. It is not intended as legal advice and should not be relied upon as such. The author's constitutional right to free speech protects its contents below.
Prenuptial Agreements are perhaps the single most useful tool in controlling the risk involved in dividing marital assets during a divorce. Unfortunately, unless the terms of the prenuptial agreement are developed with candid communications between the couple at hand as a starting point, they can devolve into a minefield of emotions.
When a Husband and Wife thoughtfully reflect upon what would be acceptable, fair, and just terms for dividing their assets, both known and unknown, they do a great service to their marriage. Both parties understand why they are entering into this marriage and what their financial landscape will look like if they choose to exit the marriage. We as attorneys like predictability so you will be hard pressed to find one that is not a fan of prenuptial agreements in the family law field. However, they are not romantic, spontaneous or whimsical and at times have the effect of putting a real downer on an impending wedding in the wrong circumstance.
So why is this article titled, "Prenup Patsy?" The basic tenants of conflict of interest direct that the attorney who drafts the prenuptial agreement for one party may not also represent the other signing party. Conventional wisdom in ensuring these agreements have the best chance of being upheld pending a future challenge has prescribed the signing party obtain their own independent counsel to review and advise them. It's a difficult task if the reviewing party does not want to recognize that their soon to be spouse may be in conflict with their interests. Not in love, in life, in partnership, just in this very brief period of pre-marital contracting. Marriage is a decision of the heart but it's also a business decision. One party may very well believe that even though they are much wealthier than the other, the other is self sustaining and deserves nothing in a divorce. The other may feel that part of what draws them to their future spouse is the stable life available to them, and does not want to be abandoned without any funds at their disposal should the other leave them.
I will never be a Pre-nup Patsy. This means I will never placate a client or a referring law firm and tell them that a prenuptial agreement is acceptable when its not nor fail to point out where it negatively alters my client's legal rights just because my opinion is unpopular. Even though its not part of the fairy tale, my client deserves to know the legal meaning of the document and the consequences that may flow from executing it. Further, my client must be afforded the opportunity to negotiate more favorable terms should he or she choose to do so. My only loyalty will remain with my client, whether they want to hear it or not, they will get the truth. I will never play a part in serving as a Prenup Patsy and neither should you! A Prenup Patsy is unethical and incompetent. This is an attorney who will sign off as having reviewed an agreement that they know to be sub-par just to avoid ruffling feathers. Know all of your rights, contemplate them far enough in advance from your wedding date that you are not rushed and finally assert your right to protect yourself in that agreement. Or don't! Its completely your choice and I am there to support and aid in either decision.
I love when clients come in for a review of their prenup and find it says almost exactly what they discussed with their spouse prior to us ever meeting. Their expectations are consistent with the document whether they receive a lump sum and heaps of protections or feel comfortable with no payment at death, dissolution, incapacity, or separation. It's trickier when my interpretation comes as a shock. It can cause a rift between soon to marry spouses and possibly attorneys. However, do not bury your head in the sand. Know what you are signing. Know if your expectations align with the agreement. And know that this firm will only furnish you with candid constructive advice as to the same. Its better to face the business part of marriage head on now so you can truly enjoy all of the spontaneity and magic later.