Prenuptial Agreements: Thinking About Property Before Marriage

by Jordan Arroyo

Harry and Mickey are both young professionals. Harry studied hard, transitioned directly from law school to a high-paying firm, and is earning $100,000 a year. Mickey invested money into a few choice stocks and properties and is able to live off of the capital gains and rental profits. The pair crossed paths and fell in love. After a year of getting to know each other, they know that they want to spend their lives together. In addition to the stress that comes along with planning a wedding, the couple is concerned about protecting the assets that they are bringing to the union. They have no plans to separate, but they want to be ready because so much can happen over the course of a lifetime. They decide to enter into a premarital agreement to ensure that both parties feel comfortable with what the other partner will take in the event of a separation.


A premarital agreement (or prenup) will help Harry and Mickey decide what parts of their property they will share with the other party over the course of the marriage. They can share as much or as little as they please.


In order to take advantage of this option, they should both hire their own attorneys, make sure that they are familiar with the Uniform Premarital Agreement Act (“UPAA”), and begin to create a full list of their assets and properties.


Why Should They Hire Separate Attorneys?


It will be beneficial for Harry and Mickey to each get their own attorney. Even though they trust each other, attorneys must be careful with regard to their duty of loyalty. If Harry hires the attorney, then the attorney will owe her duty of loyalty, confidentiality and competency to Harry alone. This means that the attorney will be working in Harry’s best interest and not Mickey’s.


Even if Harry and Mickey hire the same attorney, in the event they do not agree on the final agreement, the attorney will not be able to present any evidence for either party in court. At the end of the day, the agreement is a contract between the parties. Even if the parties are working together, there is a chance that they will not agree and will need to contest certain provisions.


What About Joint Representation?


The rules of professional conduct for attorneys limit an attorney’s ability to provide service to two clients when (1) the representation of one client will be directly adverse to another client; or (2) the representation of one or more clients may be materially limited by the lawyer’s responsibilities to another client, a former client, or a third person, or by a personal interest of the lawyer. Here, even though they love each other, Harry and Mickey have adverse interests. If they separate, both will need to take fairly from the marriage and go their separate ways. If one party takes too much, it will injure the other party.


Joint representation is not, however, impossible. Even in the event of a conflict, a lawyer may represent a client if she reasonably believes that she can provide competent and diligent representation to both clients and each client gives informed consent. So, it is possible for one attorney to represent both Harry and Mickey with the prenuptial agreement, but it is safer for all parties, for Harry and Mickey to have their own lawyers.


If one single attorney does represent both Harry and Mickey with the prenup, the attorney must always disclose all information learned from either client to the other. In the event that one client asks the attorney to keep something from the other client, the attorney should altogether end the representation. For this reason, it is better that clients each seek out their own attorneys.


What is the UPAA?


The Uniform Premarital Agreement is a law that has been adopted by multiple states. The Act sets out the rules for parties entering into premarital agreements. Premarital agreements are therefore outlined according to the Act’s requirements.


The Act requires that all premarital agreements be in writing and signed by both parties. The agreement may govern any of eight distinct topics:


1. The rights and obligations of each of the parties in any of the property of either or both of them whenever and wherever acquired or located;


2. The right to buy, sell, use, transfer, exchange, abandon, lease, consume, expend, assign, create a security interest in, mortgage, encumber, dispose of, or otherwise manage and control property;

3. The disposition of property upon separation, marital dissolution, death, or the occurrence or nonoccurrence of any other event;

4. The modification or elimination of spousal support;

5. The making of a will, trust, or other arrangement to carry out the provisions of the agreement;

6. The ownership rights in and disposition of the death benefit from a life insurance policy;

7. The choice of law governing the construction of the agreement; and

8. Any other matter, including their personal rights and obligations, not in violation of public policy or a statute imposing a criminal penalty.


Specifically, however, parties may not negotiate over who will supply child support in the event of a separation because the state has a vested interest in ensuring that children are cared for. Also, the Court may strike any agreement between spouses not to support one another after separation if the separation will cause one spouse to qualify for public assistance.


Courts want to ensure that parties executed the prenuptial agreements voluntarily, that there was fair disclosure of information between the parties, and that both parties were fairly represented or had the opportunity to seek representation before arriving at the agreement. For example, if Harry threatened to withhold custody of Mickey’s children if Mickey didn’t sign the agreement, the court would most likely refuse to enforce that agreement. Similarly, if Mickey withheld assets, wrote the entire agreement alone and then gave Harry thirty minutes to read and sign the agreement, the court will not likely enforce it.


Apart from this, the Act helps agreements honor the intent of the parties. If the Court must strike one provision from the agreement, all of the other provisions remain in effect. After deciding upon terms, the parties put the agreement into effect by getting married. The parties may then modify the agreement in writing at any time that they see fit without any additional exchange.


Why List Out All Assets and Properties?


Parties should list out all of their assets to ensure that the agreement will likely be upheld by the court in case of a dispute. The UPAA requires “fair and reasonable disclosure” of parties’ properties and financial obligations. In the absence of such full disclosure, a spouse might unintentionally agree to take on shockingly high financial burdens or work unduly hard to help a spouse that is already well provided for.


For example, Harry gets a $50,000 payment from a family trust every six months. Knowing nothing about that gift, Mickey might agree to share ½ of a $30,000 per year salary with Harry. This means that Harry would receive $80,000 a year plus a personal salary while Mickey would be left with only $15,000. Had the parties disclosed assets to one another, Mickey would not end up in such an unfair position. Moreover, because the act requires reasonable disclosure, this agreement would likely be unenforceable.


Conclusion


Harry and Mickey decide that they feel most comfortable entering into the marriage as protected as possible. Harry calls Smith Dominguez, and Mickey contacts another great local attorney. Together, they disclose all information necessary to ensure that both parties will be secure in case the unthinkable happens.




About the Author

Jordan Arroyo is a third-year law student at the Campbell University Norman Adrian Wiggins School of Law. During her time at Campbell, Jordan has been involved in a number of moot court and mock trial competitions and has served as a research assistant. She has also been heavily involved in the Black Law Student Association, the Hispanic Law Student Association and the International Law Society. Jordan is bilingual.



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