Drafting Prenuptial Agreements

Over the years, potential clients have approached me to request that I draft a prenuptial agreement.  A prenuptial agreement is a written agreement made by a couple before they marry which determines ownership of their respective assets should the marriage eventually fail.  A prenuptial agreement could include other provisions as well, including matters regarding maintenance or the characterization of property (community or separate).

The first question I always ask a client when approached to prepare such an agreement is:  when are you getting married?  If the wedding date is in close proximity to the date I am contacted, I will decline to draft the prenuptial agreement for the potential client.  Here are the reasons why:

Prenuptial agreements are creatures of caselaw and must be prepared with precision in order to be enforceable in court.  To determine the enforceability of a prenuptial agreement, a court undertakes a two-prong analysis. Under the first prong, the court determines whether the agreement is substantively fair, that is, whether it makes reasonable provision for the spouse not seeking to enforce the agreement.  If the agreement makes a fair and reasonable provision for the spouse not seeking its enforcement, the analysis ends and the court will find the agreement as enforceable.

If, as in most situations, the agreement is substantively unfair to the spouse not seeking enforcement, the court proceeds to the second prong. Under this second prong, the court determines whether the agreement is procedurally fair by asking two questions: (1) whether the spouses made a full disclosure of the amount, character, and value of the property involved and (2) whether the agreement was freely entered into on independent advice from counsel with full knowledge both spouses of their rights. If the court determines the second prong is satisfied, then an otherwise unfair distribution of property is valid and binding upon the parties.

When a potential client seeks to have an attorney draft a prenuptial agreement in close proximity to the wedding date, more often that not wedding invitations have already been sent, wedding arrangements and receptions have been booked, and so forth.  The disadvantaged party may feel coerced or pressured into signing a prenuptial agreement under such circumstances.  Additionally, it may be difficult for parties to effectively make a full disclosure of their assets (real estate with fair market values, IRA, 401(k), automobiles, boats, collections, etc.) and debt (student loans, credit card debt, mortgages, etc.), or for the disadvantaged party seek competent legal counsel to review a draft of a prenuptial agreement with enough time prior to the wedding date.  The bottom line is that a court would likely find that such a document, even if executed, would not be enforceable in the future.

If you find yourself in a situation where you wish to consider a prenuptial agreement, I strongly recommend getting started well in advance of your wedding date – preferably before sending out invitations or announcing the date of the wedding – and each party hiring experienced counsel.