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This article was originally published in the ABA Journal, October 1994. When a couple heading down the aisle today is well-off, the curiosity once centered on a dowry is likely to concern the terms of a prenuptial agreement. Prenuptial agreements, also known as premarriage contracts or antenuptial agreements, are no longer only the province of the rich and famous. As social mores have changed, a growing number of couples are willing to acknowledge that their marital vows may reflect a passing phase rather than a lifelong commitment. The chances also are good that at least one partner brings into the marriage a legacy of prior entanglements. Moreover, while it is still not common for the husband or wife to be downright rich, the chances are greater that at least one will enter the marriage with some significant personal financial resources. Conjugal Contingency Plan In these circumstances, it is no wonder that romance gives way to a dose of realism. Prenuptial agreements seek to head off the nastier aspects of a divorce, if one does occur, and to avoid the maneuvering over assets that can escalate in the midst of a divorce. They also are intended to minimize extensive and antagonistic discovery proceedings (a particularly unappealing prospect for persons in high-profile corporate or professional positions) once a divorce is under way. Now more than ever, the corporate owner or executive desires protection from the devastation that can occur when divorce proceedings become antagonistic and messy. Absent the protection of a prenuptial agreement, that person--and even his or her company--can be besieged by lawyers looking for assets, perks, hidden income, benefits and property. To serve their purpose, prenuptial agreements must be able to withstand the challenge likely to come from spouses having second thoughts about them and seeking a way out. It is important to take steps at the time a prenuptial agreement is prepared to bolster it against possible challenges. Among them: Each party should be represented by an attorney, preferably one who is versed in contract as well as matrimonial law. All current and prospective assets must be divulged in the course of negotiating the agreement. Each of the signatories must attach a statement of his or her net worth to the agreement. (Some lawyers counsel that the assets of the "monied" spouse should be upwardly calculated to avoid any claim of undervaluation. This is a bad idea. Untruths should not permeate the negotiations, and generosity is rarely rewarded in a lawsuit, if one becomes necessary.) Matters of "consciousness raising," as well as social and family issues, may be included in a prenuptial agreement, but counsel should advise clients that such provisions probably will not be enforceable and indeed may configure the entire agreement negatively. A stenographic recording or videotape of the signing of the agreement is helpful if either party attempts to set it aside during divorce proceedings. A successful claim that either party was forced to or did sign the agreement under extreme stress or duress ultimately will void the agreement. Prenuptial agreements are particularly vulnerable to this kind of attack. A man or woman anxious to marry sometimes will make a bargain that becomes less and less palatable as the marriage sours. It is not uncommon for the disappointed spouse to cry, "Foul! I signed the agreement because I was forced to do so!" But a threat that the marriage will not take place is not duress. What can constitute duress are physical or mental threats, and any such undue influence will be brought to a court's attention by a party seeking to have the prenuptial agreement invalidated. Being under the influence of alcohol or any drugs--if the spouse seeking the agreement is aware of it--is an outside influence that can be used to invalidate an agreement. Not knowing the contents of the agreement being signed is certainly not a knowlegeable execution. The good health of the parties must be clearly in evidence--mental or physical incapacity likely will be grounds for nullification. Overreaching by either party or counsel is grounds to set aside a prenuptial agreement. If a court finds that either party knowingly or intentionally was taken advantage of, the agreement is in trouble. Marriage today is an economic as well as a romantic partnership--perhaps it always has been. One hopes that matters of the heart will flourish when issues of economics have been settled up front. - - Cecile C. Weich, Counselor at Law |