How can you make your client happy with a prenuptial agreement that will hold water when the time comes for enforcement?
By David Matthews, Trial Lawyer
The first step is to understand what your client wants and determine if it can be accomplished. A surprising number of clients believe that everything is up for grabs in a prenuptial agreement because that is what they have seen on television and in movies. Some clients even want to use prenuptial agreements to control the future conduct of their spouse. These types of requests can be very harmful to the relationship and should be discouraged.[1]
Outline Goals Before Drafting the Prenuptial Agreement
The second step to success is to have your client outline the goals that he or she wants to accomplish before drafting of the agreement commences. It is important to not make the client feel that they are being evaluated or being asked to prepare a legal document, since they will view that as your job. Simply ask the client to send you a private email with the issues they wish to address in the agreement. People generally don’t wake up one day and decide they need a prenuptial. It is almost always something that they have thought about over a period of time.
This preliminary exercise accomplishes a few things. First, you will be able to determine early on whether the client can be satisfied with an enforceable prenuptial agreement. Second, you will be able to discuss issues with them ahead of time that could potentially invalidate the agreement. Finally, you may determine that because of the character of the assets and other circumstances, the client does not need a prenuptial agreement. Such may be the case when the client has discrete, inherited property that is not of substantial value. It is much better to be transparent with them early on as to whether or not their goals can be accomplished. If this discussion occurs after the document has been drafted and billed, you may be faced with an angry client who feels cheated.
Think about the Endgame: How Will a Judge Interpret a Prenuptial Agreement?
Once drafting begins, start thinking about the endgame. How will the document be interpreted (and how will your work product be judged) if and when that day occurs? Think about how a judge who is looking for a simple, clear solution will view the agreement. As we learned in civil procedure class, litigators are limited in their ability to forum shop and procure a judge who sees the case the way they see it. Jurisdictional and venue provisions may be utilized in the agreement, but that will only direct an action to a certain group of judges, if the provision is enforceable at all.
The best strategy is to focus on writing a document that expresses your client’s intent in clear, succinct language. The prenuptial process typically sees drafts of the agreement revised and edited by counsel many times before it is consummated. That process often leads to an esoteric document, which may only be truly understood by the client, or possibly by the attorney who drafted it. Allowing that to occur will ultimately diminish the chances of enforcement down the road.
Be wary of opposing counsel who does not seem capable of drafting a clear, concise paragraph. Many well-known litigators are less than capable writers. Others create problems because they are trying too hard to obtain an advantage for their client or because they want to be viewed as tough negotiators. Ironically, it is often the most important provisions that become the most ambiguous since they have received the most back-and-forth attention from counsel and their clients.
One solution is to have one of your partners, associates or outside colleagues review the agreement before it goes out the door. It does not need to be an attorney who writes prenuptial agreements every day; an attorney who has a solid background in contract drafting, interpretation and enforcement can be a valuable resource. Remember, the judge does not interpret prenuptial agreements every day, either. He or she does, however, read and interpret contracts frequently, if not daily.
Eschew the Esoteric: Use Clear, Simple Language
Every judge wants to read clear, simple language that expresses the parties’ intentions. That’s the cornerstone rule of contract drafting. If a judge finds the agreement to be poorly drafted and/or ambiguous, there is a significant risk that it will be voided. The trier of fact would then divide the assets as he or she sees fit, much to the dismay of your client. Nothing upsets clients more than paying a lawyer to take precautionary action, only to see their money and efforts go down the drain.
Prenuptial agreements often involve time, expense and some degree of stress in the negotiation process. If one is going to go through the trouble of negotiating and consummating a prenuptial agreement, there needs to be a reward. And that reward is successful enforcement of the agreement.
In the next article, we will explore the nuts and bolts of enforceable prenuptial agreements.
[1] Laws and enforceability of prenuptial agreements vary by state. Please consult with an attorney who has knowledge of applicable laws governing the agreement.
David Matthews is an Atlanta-based partner at Weinberg Wheeler Hudgins Gunn & Dial, a national trial firm formed in 1999. www.wwhgd.com
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