Business Law 11th Edition by Kenneth Clarkson,Roger LeRoy Miller,Gaylord Jentz,Frank Cross

Exercise 9

Prenuptial Agreements and Advice of Counsel
The drafting and signing of prenuptial agreements are often at odds with the very concept of marriage. After all, the parties purport to be in love with each other and desirous of sharing all aspects of their lives. Under these circumstances, the thought of involving lawyers in the negotiation of a prenuptial agreement seems inappropriate. Nonetheless, prenuptial agreements are drafted and entered into every day. Cases occasionally come before the courts in which a party to a prenuptial agreement claims that the agreement should not be enforced because he or she was not advised to consult his or her own attorney before signing the agreement.
Some Jurisdictions Require Independent Counsel
In a growing number of jurisdictions, courts regard the advice of independent counsel as a significant factor in determining whether a party signed a prenuptial agreement voluntarily. In other words, if a prospective spouse did not have the advice of her or his own attorney before signing the agreement, that could indicate that the agreement was not signed voluntarily. In one case, for example, a woman challenged the enforceability of a prenuptial agreement on the ground that her husband's lawyer, who was hired to draft the agreement, did not advise her to have it reviewed by her own attorney. The Supreme Court of North Dakota held that the agreement could in fact be unenforceable for this reason. a In a subsequent case involving similar facts, the Supreme Court of North Dakota reiterated that "adequate legal representation will often be the best evidence that a spouse signed the agreement knowledgeably and voluntarily." b
Many courts have been particularly suspicious of prenuptial agreements involving a waiver by the future wife of all spousal support in the event of marriage and divorce. The reasoning has been that any prenuptial support waiver might undermine the permanency of the marital relationship, which would be contrary to public policy.
Other Jurisdictions Do Not Require Independent Counsel
Other jurisdictions take a different approach. For example, in a highly publicized case involving baseball player Barry Bonds, the California Supreme Court held that a prenuptial agreement was enforceable even though Bonds's wife was not advised to obtain independent counsel before signing it. The wife, who was Swedish and had little knowledge of English, later stated that she had not understood that by signing the agreement, she would forfeit any right to the earnings and property acquisitions of the parties during their marriage. The court, however, held that the agreement was enforceable. The court concluded that the evidence indicated that the wife had consented to the terms of the agreement. c
In another case, just days before the wedding, a man drove his future wife to his attorney's office and asked her to sign a prenuptial agreement as a precondition of their marriage. The agreement provided that each spouse waived his or her rights to the other spouse's property. The attorney advised the woman to obtain independent counsel and gave her an opportunity to review the document before signing it, but she did neither. After her husband's death, she claimed that the agreement was invalid because she had not signed it voluntarily. She stated that she had been very embarrassed by the scene in the attorney's office when she signed the agreement and had just wanted to "get it over with." Nonetheless, the court held that the agreement was valid. The court declared that while the husband's actions were "certainly not laudatory" and could be "fairly characterized as surprise tactics," they did not negate the "voluntary nature of the execution." d
In a more recent case, the Connecticut Supreme Court rejected a trial court's conclusion that the exwife had had insufficient time to digest and understand the disclosure on the day she signed the agreement. The appellate court ruled that "it is the party's responsibility to delay the signing of an agreement that is not understood." e
Some observers argue that enforcing prenuptial agreements when both parties did not have the advice of independent counsel unduly burdens the financially weaker party to the marriage, customarily the woman. Others contend that allowing financially successful future spouses to protect their assets encourages more marriages to take place.
Clearly, the courts are divided on the issue of whether prenuptial agreements should be upheld despite the lack of independent counsel by both parties. Should the advice of independent counsel be a requirement for a valid prenuptial agreement What is your position on this issue
[a. Estate of Lutz, 563 N.W.2d 90 (N.Dak. 1997).]
[b. See Binek v. Binek, 673 N.W.2d 594 (N.Dak. 2004).]
[c. In re Marriage of Bonds, 24 Cal.4th 1, 5 P.3d 815, 99 Cal.Rptr.2d 252 (2000).]
[d. In re Estate of Ingmand, 2001 WL 855406 (Iowa App. 2001).]
[e. Friezo v. Friezo, 281 Conn. 166, 914 A.2d 533 (2007).]