Prenuptial Agreement Family Law
Family LawProfessor Carbone
General Instructions: Thisexerciseinvolves a negotiation and drafting exercise. It isdesigned
tointroduce you to issues that will run through the entirecourse. The exerciseis mandatory, but
willbegraded on a pass-fail basis.It is likelyto be the subject of a question on the finalexam. It
is due on Feb. 5th.
Case Files: TomMarsh and Suzanne Biddle are an engaged couple who wouldlike to enter into a
premarital agreement. Suzannehas retained the firm of Lee andLevine; 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 agreementthe clients drafted on their own; 3) a timesheet on which you
willtabulate billable hours. Whenyou have completed the exercise, calculate the bill you would
present tothe 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 PremaritalAgreement Act (UPAA) at pp. 875-76 of the casebook, andthe California
statute noted inPremaritalAgreement supplement on Claranet.You should also read the material
at 853-81, particularly870-75 and the PremaritalAgreement supplement, but ifthere is any
uncertainty, you should assume that the Act will govern. You are not expected to do outside
research. You shouldassumethat you are in a no-fault jurisdiction in which fault will beirrelevant
toanydivorce proceeding,andthat the jurisdiction has adopted some formof maritalproperty or
community property scheme inwhich property acquired during the marriagewill be subject to
division at divorce.
Establishing Firms: I wouldlike each person in the class to choose a partner. The two of you
willjointly represent one of the partiesto the transaction. Then, I will provide a signup sheet that
willallowtopair yourselves with an opposing group, who will represent the other party. You
and your partner will besupplied with some additional information, and then join with the
opposinggroup to complete the negotiation.
Pre-negotiation Memo to the Files: After you have had a chanceto researchthe issues in your
casebook, you should prepare the attached “Pre-NegotiationMemo 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 duringthe
Negotiating with Opposing Counsel: Each teamshould arrange to meet outside of class. The
negotiating session is not tolast longer than one hour. Asyou negotiate, besure to note the
language on which you agreed. At the end of the allotted time, you should leave with a clear
indicationof whichterms have been resolved and which, if any, are stillindispute.
Preparing Your Final Draft: Prepare a final draft reflectingthe negotiated changes. Use
brackets to identify those terms which are stillindispute.
Turning in Your Case File: Complete the attached post-negotiationmemoandturn it in with
your case file. The file shouldcontain 1) the proposed agreement, 2) the two memos, and3) your
time sheet, including the total bill you would present tothe customer.
Confidentiality: The information you obtain during the interview isconfidentialand should not
be disclosedto anyone else in the class during the negotiation.
MEMO FROM THE DESK OF PROFESSOR CARBONE
Just a quick note toexplain the background of the case I havereferred to you. Tom and
Suzanne are MBA students at the Business School. Tom Marshhasworked since hefinished
college in a business his late father, my old friendAble Marsh, started years ago. Tom hasrun it
himself, since his father's death, I gather rather successfully. Hisfiancee, Suzanne, is the former
curatorofa private museum who decided after ten years in the non-profit sector to switch
careers. Currently, Tom lives in a condo he ownsin Center CityandSuzanne lives in a Dorm near
the Business School. Tom continuesto work at his business while pursuing hisstudies, and his
income has beenmore thansufficient to pay his way through school. Suzanne left her job to go
backto school andI gather has more debts than assets. She has done extremely well, however,
and tells me she hasaccepted a jobat a top flight company where her prospects for
advancement are excellent. Tom plans to continuehis current businessenterprise.
Apparently they saw a TV special last week about "writing your own prenup" andran 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 theyadapted from a
draft in the book just "to see if we got it right." (Copy attached) As you can imagine, I strongly
advisedthem toget competent advice from separate counsel. I referred one of themto you and
one of them to another former student.
I have glanced at their draft andit seemsasif they are both great believersingender equality.
Suzanne apparentlyrejects 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 holda great deal of significance to them. They do seem to be very
much in love. They haveset their weddingdate for just a fewweeksfromnow, and long ago
arranged the ceremony andreception and sent out the invitations. Thisis why the matter is
It ismy pleasure to refer this case (or half of it at least) to your competent hands and I wish
you the best of luck.
SUZANNE O'BRIEN AND TOM MARSH
– – DRAFT– –
WHEREAS Tom and Suzanne intend to be married; and
WHEREAS Tom and Suzanne, althoughspirituallyunited, intend to conduct their married livesas
financially independent individuals and
WHEREAS neither Tom nor Suzanne wishes to make claimsto the other'searnings or estate and
WHEREAS Tom and Suzanne have each been informedof the other's financial condition
1. The parties agree that after the solemnization of their marriage each of themshall
separatelyretain as his or her own property any and all rights to any wages, income, earnings,
investments or other assets of anykindwhatsoever, real or personal, whether now owned or
acquired hereafter andthat such assets shall not be deemed joint, community, or marital property.
2. Suzanne shallretain her own surname and Tom shallretain 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 establishtheirmarital domicile in the home Tom now owns in Center
City and shall share equallythe dailyexpensesofmaintainingthe joint residence.
6. Should children be born to Tom andSuzanne, Tom and Suzanne shallshare equally inthe
responsibilities andcosts of child rearing.
7. Inthe event of divorce, Tom and Suzanne shall have joint custody of anychildren and shall
continue to share equallyin the responsibilities and costs of childrearing.
8. Inthe event of divorce, Tom waives any right to alimony or support from SuzanneandSuzanne
waives any right to alimony or support from Tom.
MEMORANDUM TO FILES
Case Nameand Number:
Subject: Pre-Negotiation Memo
1.Enforceability of provisions:
a.The whereas clauses.
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:
DateDescription of Work1/4 hrs
ATTORNEY WORK PRODUCT
PRIVILEGED AND CONFIDENTIAL
Case Nameand Number:
Subject: Post Negotiation Memo
1.Yourgoals and strategies going into the negotiation.
2.Issues on which you prevailed, compromised or gave in.
III. The likelihood that your client willaccept 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 ofexecution.
V. Whether the final draft willbe viewed as fairat time of enforcement and the
relevance of this question to yournegotiation strategy.
VI.Whether the firm's Legislative Policy Committee should advocate forany
changes in the UPAA, based on this client's experience, and why.
HARRISON THOMAS, Appellant, vs. ALICE CAROLYN