Fillable Printable Prenuptial Agreement Family Law

Prenuptial Agreement Family Law

Family Law Professor Carbone

PREMARITAL AGREEMENT EXERCISE

General Instructions: This exercise involves a negotiation and drafting exercise. It is designed

to introduce you to issues that will run through the entire course. The exercise is mandatory, but

will be graded on a pass-fail basis. It is likely to be the subject of a question on the final exam. It

is due on Feb. 5th.

Case Files: Tom Marsh and Suzanne Biddle are an engaged couple who would like to enter into a

premarital agreement. Suzanne has retained the firm of Lee and Levine; Tom has hired Rose and

Rossi. You are an associate at one of the two firms. In preparation for the case, you have been

asked to review 1) a note from your former family law professor who referred the case to you; 2)

a copy of the proposed agreement the clients drafted on their own; 3) a time sheet on which you

will tabulate billable hours. When you have completed the exercise, calculate the bill you would

present to the client for your work. (Assume a rate of $150 per hour.)

Governing Law: You are to assume that this takes place in a jurisdiction that has adopted the

Uniform Premarital Agreement Act (UPAA) at pp. 875-76 of the casebook, and the California

statute noted in Premarital Agreement supplement on Claranet. You should also read the material

at 853-81, particularly 870-75 and the Premarital Agreement supplement, but if there is any

uncertainty, you should assume that the Act will govern. You are not expected to do outside

research. You should assume that you are in a no-fault jurisdiction in which fault will be irrelevant

to any divorce proceeding, and that the jurisdiction has adopted some form of marital property or

community property scheme in which property acquired during the marriage will be subject to

division at divorce.

Establishing Firms: I would like each person in the class to choose a partner. The two of you

will jointly represent one of the parties to the transaction. Then, I will provide a signup sheet that

will allow to pair yourselves with an opposing group, who will represent the other party. You

and your partner will be supplied with some additional information, and then join with the

opposing group to complete the negotiation.

Pre-negotiation Memo to the Files: After you have had a chance to research the issues in your

casebook, you should prepare the attached “Pre-Negotiation Memo to Files.” Prepare this memo

BEFORE the negotiation session. KEEP IT CONFIDENTIAL. In the memo, you should

hypothesize what your client would instruct you do on each issue likely to arise during the

negotiation.

Negotiating with Opposing Counsel: Each team should arrange to meet outside of class. The

negotiating session is not to last longer than one hour. As you negotiate, be sure to note the

language on which you agreed. At the end of the allotted time, you should leave with a clear

indication of which terms have been resolved and which, if any, are still in dispute.

Preparing Your Final Draft: Prepare a final draft reflecting the negotiated changes. Use []

brackets to identify those terms which are still in dispute.

Turning in Your Case File: Complete the attached post-negotiation memo and turn it in with

your case file. The file should contain 1) the proposed agreement, 2) the two memos, and 3) your

time sheet, including the total bill you would present to the customer.

Confidentiality: The information you obtain during the interview is confidential and should not

be disclosed to anyone else in the class during the negotiation.

MEMO FROM THE DESK OF PROFESSOR CARBONE

Just a quick note to explain the background of the case I have referred to you. Tom and

Suzanne are MBA students at the Business School. Tom Marsh has worked since he finished

college in a business his late father, my old friend Able Marsh, started years ago. Tom has run it

himself, since his father's death, I gather rather successfully. His fiancee, Suzanne, is the former

curator of a private museum who decided after ten years in the non-profit sector to switch

careers. Currently, Tom lives in a condo he owns in Center City and Suzanne lives in a Dorm near

the Business School. Tom continues to work at his business while pursuing his studies, and his

income has been more than sufficient to pay his way through school. Suzanne left her job to go

back to school and I gather has more debts than assets. She has done extremely well, however,

and tells me she has accepted a job at a top flight company where her prospects for

advancement are excellent. Tom plans to continue his current business enterprise.

Apparently they saw a TV special last week about "writing your own prenup" and ran out and

bought a book on how to write your own marriage contract. As I mentioned in our phone

conversation, they wanted me to look over their "Draft Agreement" which they adapted from a

draft in the book just "to see if we got it right." (Copy attached) As you can imagine, I strongly

advised them to get competent advice from separate counsel. I referred one of them to you and

one of them to another former student.

I have glanced at their draft and it seems as if they are both great believers in gender equality.

Suzanne apparently rejects old fashioned ideas about female dependency. But they do seem to

believe strongly in marriage as a binding commitment and they are planning a religious

ceremony which seems to hold a great deal of significance to them. They do seem to be very

much in love. They have set their wedding date for just a few weeks from now, and long ago

arranged the ceremony and reception and sent out the invitations. This is why the matter is

somewhat urgent.

It is my pleasure to refer this case (or half of it at least) to your competent hands and I wish

you the best of luck.

JRC

PREMARITAL AGREEMENT

BETWEEN

SUZANNE O'BRIEN AND TOM MARSH

– – DRAFT – –

WHEREAS Tom and Suzanne intend to be married; and

WHEREAS Tom and Suzanne, although spiritually united, intend to conduct their married lives as

financially independent individuals and

WHEREAS neither Tom nor Suzanne wishes to make claims to the other's earnings or estate and

WHEREAS Tom and Suzanne have each been informed of the other's financial condition

1. The parties agree that after the solemnization of their marriage each of them shall

separately retain as his or her own property any and all rights to any wages, income, earnings,

investments or other assets of any kind whatsoever, real or personal, whether now owned or

acquired hereafter and that such assets shall not be deemed joint, community, or marital property.

2. Suzanne shall retain her own surname and Tom shall retain his own surname.

3. Tom and Suzanne shall each continue to pursue their professional careers.

4. Tom and Suzanne shall share household duties equally.

5. Tom and Suzanne shall establish their marital domicile in the home Tom now owns in Center

City and shall share equally the daily expenses of maintaining the joint residence.

6. Should children be born to Tom and Suzanne, Tom and Suzanne shall share equally in the

responsibilities and costs of child rearing.

7. In the event of divorce, Tom and Suzanne shall have joint custody of any children and shall

continue to share equally in the responsibilities and costs of child rearing.

8. In the event of divorce, Tom waives any right to alimony or support from Suzanne and Suzanne

waives any right to alimony or support from Tom.

__________________________

TOM MARSH

____________________________

SUZANNE O'BRIEN

MEMORANDUM TO FILES

Case Name and Number:

Attorney's Name:

Date:

Subject: Pre-Negotiation Memo

1. Enforceability of provisions:

a. The whereas clauses.

b. Paragraph 1.

c. Paragraphs 2 through 5.

d. Paragraphs 6 and 7.

E. Paragraph 8.

II. Suggestions regarding items client might wish to add or delete, and why:

III. Other issues and/or advice:

IV. Client's instructions:

TIME SHEET

________________________________________________________________________

Date Description of Work 1/4 hrs

ATTORNEY WORK PRODUCT

PRIVILEGED AND CONFIDENTIAL

MEMORANDUM TO FILES

Case Name and Number:

Name of Attorney:

Date:

Subject: Post Negotiation Memo

1. Your goals and strategies going into the negotiation.

2. Issues on which you prevailed, compromised or gave in.

III. The likelihood that your client will accept the draft as negotiated. The likelihood the

other party will accept the draft as negotiated.

IV. Whether the final draft meets the fairness requirements of UPAA section 6 based on

the situation at time of execution.

V. Whether the final draft will be viewed as fair at time of enforcement and the

relevance of this question to your negotiation strategy.

VI. Whether the firm's Legislative Policy Committee should advocate for any

changes in the UPAA, based on this client's experience, and why.

In Re: The Marriage of: BUD HARRISON THOMAS and ALICE CAROLYN THOMAS. BUD

HARRISON THOMAS, Appellant, vs. ALICE CAROLYN