Includes 2 checklists, plus tips on dual representation, what to disclose, child support from a former marriage and more.
By Rory T. Weiler
Excerpted from Divorce Tools & Techniques
- Drafting Practice Tips
- Checklist: Typical Topics of a Premarital Agreement
- Checklist: Financial Disclosure
If nearly half of all first marriages end in divorce, and nearly 70% of second marriages fail, you should first understand that there is at least a 50/50 chance that any prenuptial agreement you draft or review will be examined thoroughly and analytically. Therefore, when confronted by the client who either wishes you to draft a “quick” prenuptial agreement, or worse yet, review one quickly because the wedding is next week, you need to ask yourself: Do I really want to accept this engagement?
Simply because the parties have failed to make the prenuptial agreement a priority in the wedding planning (or more commonly, because one party has waited until the last minute to broach the subject), doesn’t mean that you should assume needless liability for an agreement prepared or reviewed in haste. Remember, your agreement has at least a one-in-two chance of being the subject of litigation. Whatever time limitation you think enables you to competently and adequately do the job required to properly protect your client’s interests, establish that time limitation in your practice, and stick to it. You will not regret it.
The 60-Day Rule
There is very little to be gained from a last minute engagement to draft or review a prenuptial agreement, except an opportunity to hone your skills drafting letters to protect yourself from liability to your former client in a subsequent malpractice case. The best approach is often to just say no, and let one of your ill-informed colleagues take the assignment. In my practice, the first question I ask is “When is the wedding?” If the answer is less than 60 days away, I politely decline.
§4:20 Draft With the Divorce or Death in Mind
As noted above, there is a fairly significant probability that the agreement you are being asked to draft or review is going to be the subject of future litigation. While there is no such thing as a perfect contract, your goal should be to try to create one. Defensive drafting means going the extra mile now, so that the walk to enforceability will be shorter later.
The best way to approach the process is to draft and review the document as if the divorce has already been filed. Attorneys who don’t negotiate and prepare premarital agreements with the parties’ divorce, not marriage, in mind, are filling their file drawers with ticking time bombs. Also, in a society where second marriages, particularly between elderly clients, are becoming increasingly common, death is frequently every bit as important a concern to the drafter as divorce is. Quite apart from the economic specifics required in the agreement, drafting and review can be conducted in a manner that will enhance enforceability.
Defensive drafting often requires taking steps that might not necessarily be required by the Uniform Act or at common law. This is more than just gilding the lily. It is contemplating the defenses to enforcement that are going to be raised in the event of divorce, and trying to defeat them before they develop any traction with the court.
§4:22 Never Agree to Dual Representation
Acting as the only attorney involved places you in the uncomfortable position of appearing to serve two masters. Who among us is naïve enough to believe that if we talk to the unrepresented spouse, he or she will not assume we are providing legal advice, written protestations to the contrary notwithstanding? Therefore, no practitioner should ever consider an arrangement where he drafts a premarital agreement for “both of the parties” to the agreement, no matter how many waivers the parties execute. It is much better to decline that engagement than it is to virtually guarantee not only litigation between the parties, but an adjunct malpractice case against the drafter as well.
§4:24 What to Disclose
I recommend the provision of three years’ worth of tax returns, and a specific asset disclosure that includes not only a description of the asset, but its value and any indebtedness tied to the specific asset. Commonly this would include mortgages against real estate, car loans, 401(k) plans, and the like. There can never really be too much disclosure, and I often tell my clients that if the asset is important to the client, disclosing it is similarly important, no matter what the economic value of the asset might be. Therefore, assets with emotional value, such as family heirlooms like Grandma’s wedding band, should be included in the disclosure.
§4:44 Account for What Client Is Giving Up
As a reviewing attorney, never lose sight of what your client will be giving up at the time of the parties’ marriage. Most marriages in which prenuptial agreements are being negotiated involve some blending of households, a sale of a residence, garage sales to dispose of duplicative furniture and furnishings, and the like. If your client is going to be selling her home and goods, be sure to provide for some ability on her part to resume her former life in the event of the dissolution of the marriage, particularly where the marriage is of a very short duration.
§4:45 Protect Child Support and Maintenance From Former Marriage
Also, if your client is entitled to receive child support or maintenance from a former marriage or relationship (some agreements provide for continuing maintenance payments after remarriage, often where the primary purpose of the alimony payment is to allow favorable tax treatment of transferred property), be sure to provide that these sums will be sequestered from the “marital” estate, or subject to reimbursement for the contribution of same to the marital estate.
No matter how the negotiations go, it is a good idea to memorialize the sum and substance of your negotiations in a letter to your client prior to the execution of the agreement. This will protect you from claims made years down the road as to why this was or was not done, as I can guarantee you that when another lawyer asks your client why she signed this agreement, her answer will be, “My attorney told me to.”
Keep in mind that provisions related to child custody and support are likely not enforceable, so there is no point to be served in addressing them. However, provisions for the establishment of college funds, or statements of intent as to lifestyle to be afforded the children (such as private vs. public universities and limitations on the number of years for which payments might be provided), can certainly be a useful memorialization of the parties’ premarital expectations.
___ Identification of premarital property, and treatment upon divorce or death.
___ Method of dealing with property acquired by use or sale of premarital property.
___ Identification and treatment of prior divorce or other court-ordered obligations.
___ Identification and treatment of prior divorce or other court-ordered rights, and how payments/property from a prior relationship is to be treated, especially if commingled.
___ Support of and payment for expenses for children of prior relationship.
___ The new spouse’s rights to ownership/occupancy of a premarital home in the event of the death of the owning spouse.
___ Treatment and provisions for pre-existing debts.
___ Methods for payment of joint expenses post-marriage.
___ Methods for payment of separate expenses (i.e., support and alimony) post-marriage.
___ Treatment of wedding gifts in short-term marriages.
___ Statements of intent as to lifestyle, such as the parties’ desire that wife focus on being a stay-at-home mom, etc.
___ Entitlement to temporary or permanent alimony in the event of a divorce, and alternate methodologies for dealing with alimony rights (lump-sum payments, etc).
___ Temporary and other attorney’s fees awards.
___ Treatment of premarital property placed into joint ownership, and specifically, the entitlement to a return of premarital property contributed to the purchase or acquisition of a joint asset.
___ Treatment of retirement plans, both qualified and non-qualified, and marital contributions into those plans.
___ Treatment of business interests, assets, and debts.
___ Compensation and benefits paid to a business-owning spouse by the premarital business. Specifically, an acknowledgment that the compensation and benefits paid to the business-owning spouse are adequate compensation for the work performed by him or her.
___ Treatment of investments or assets acquired post-marriage by the premarital business.
___ If the new spouse will be working in the premarital business, identify and specify the nature of the compensation and benefits to be provided and the sufficiency of compensation and benefits for the work to be performed.
To prepare the prenuptial agreement, and in fact, to properly review it, you will need to have your client compile a financial statement that outlines income, debt, assets, and their values. The following is a good start in getting clients working on their disclosures, which should ultimately end up incorporated into the prenuptial agreement itself. Tax returns need not be attached to the prenuptial agreement, due to their volume, but definitely need to be exchanged with opposing counsel.
___ Last three years of tax returns, with all schedules and attachments.
___ A current monthly statement for every bank account, money market account, certificate of deposit, stock, bond, or investment account.
___ Identification of all real estate owned, the fashion in which title is held (i.e., joint tenancy, trust, etc.), along with the current mortgage balance(s), home equity loans or lines of credit, appraised value, and appraisals, if any.
___ Car titles, loan balances, and estimates of values. I would use the VIN on the disclosure and indicate the manner in which title to the vehicle is held.
___ Most recent statements from any retirement account, whether qualified (ERISA) or not, along with loan balances. When dealing with a pension, I would also incorporate the existing projected benefit upon retirement. Also, if you intend to seek a waiver of interest from the spouse post-marriage (see below), a copy of the waiver intended to be signed should also be provided.
___ Jewelry and personal property appraisals—homeowner’s insurance policies are excellent sources for this information. These include art, antiques, and collections.
___ Identification of family heirlooms, particularly any gifted to the fiancée for which return is going to be provided.
___ Business tax returns, profit and loss statements, balance sheets for three years. Copy of the owner’s stock certificate, or some similar designation of ownership percentage/interest. If business valuation appraisals have been done for gifting or other purposes, provide those as well.
___ Life insurance policies, including loan information.
___ Monthly statement from credit card, installment, or other debts and obligations.
___ The judgment for dissolution of marriage, marital settlement agreement, and parenting agreement from any prior marriage pursuant to which obligations or entitlements still exist.
Rory T. Weiler concentrates his practice in family law, with an emphasis on cases involving child custody and more complex economic issues.
Mr. Weiler is a fellow of the American Academy of Matrimonial Lawyers. He is active in his local community, as well as the Kane County and Illinois State Bar Associations, and was recognized by these associations for his service to the indigent in 2001, 2005 and 2011.
Mr. Weiler has served as chair of the ISBA Family Law Section Council, and currently chairs the ISBA Family Law Section legislative committee. He has previously served four terms as the chair of the Kane County Bar Association Family Law Committee.
He has authored numerous articles on family law topics, and has lectured extensively on a broad range of topics, including child custody litigation; financial issues in divorce; and trial practice.
He earned his law degree in 1979 from John Marshall Law School, and practices with Weiler & Lengle in St. Charles, Illinois.