Fillable Printable Prenuptial Agreements for First, Subsequent and Later-In-Life Marriages
Fillable Printable Prenuptial Agreements for First, Subsequent and Later-In-Life Marriages
Prenuptial Agreements for First, Subsequent and Later-In-Life Marriages
Prenuptial Agreements for First, Subsequent
and Later-In-Life Marriages
Negotiating and Crafting Agreements to Protect and Provide for Distribution of Assets
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THURSDAY, AUGUST 16, 2012
Presenting a live 110-minute webinar with interactive Q&A
Julia Swain, Partner, Fox Rothschild, Philadelphia
Leonce A. Richard, Shareholder, Mariscal Weeks McIntyre & Friedlander, Phoenix
Jeffrey A. Soilson, Partner, Sally & Fitch, Boston
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Stafford Publications
Leonce A. Richard, Esq.
Mariscal, Weeks, McIntyre, & Friedlander, PA
Certified Family Law Specialist
5
Unique Considerations
For First-Time Marriages
6
First Time Marriages are also…
•
Prone to external motivating factors
- Often the parties themselves do not generate the idea of a pre-
nuptial agreement, but rather a party’s parents or their parents’
legal and/or financial advisor(s) insist on such an agreement.
- General focus of such external factors is on such concerns
as family trusts, inheritances, and family business interests.
- Actual “client” may be nonchalant or hostile to the idea of a
pre-nuptial agreement.
- Ethical considerations regarding conflict of interest.
•
A highly mobile group: relocation to another jurisdiction is often
contemplated or a least considered a possibility.
- Must consider the impact of the law of other jurisdictions on
any pre-nuptial agreement.
- If relocation is clearly contemplated, may want to consult with
a family law attorney in the other jurisdiction in drafting the
agreement.
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There May Also Be Choice of Law
Concerns…
•
Uniform Premarital
Agreement Act (“UPAA”)vs.
Non-Act State Law
•
States that have adopted the
act: Arizona; Arkansas;
California; Connecticut;
Delaware; Florida; Hawaii;
Idaho; Illinois; Indiana; Iowa;
Kansas; Maine; Montana;
Nebraska; Nevada; New
Jersey; New Mexico; North
Carolina; North Dakota;
Oregon; Rhode Island; South
Dakota; Texas; Utah; Virginia.
•
Section 6 of the UPAA provides an agreement
complying with minimal requirements of the
act is presumptively valid and the party
opposing enforcement of the agreement has
the burden of proving either of the following
to defeat the agreement:
(1) He or she did not voluntarily
execute the agreement; or
(2) The agreement was unconscionable
when it was executed; and he or she was
not provided a fair and reasonable
disclosure of the other party’s property
and debts; and he or she did not
voluntarily and expressly waive in writing
a right to disclosure beyond what was
provided; and he or she did not have, or
reasonably could not have had, adequate
knowledge of the other party’s property
and debts.
•
The Act further provides that the question of
whether the Agreement was unconscionable
when it was executed shall be decided by the
court as a matter of law.
8
Community Property vs.
Equitable Distribution States
•
In most instances, the definition of “community property” is similar to that
for “marital property”. The definition of “separate property” is usually very
similar to that for “non-marital property”.
•
However, there are subtle differences. Generally, community property states
draw a solid line between community property and separate property (usually
premarital and inherited property). In most cases, a spouse’s rights in his or
her separate property are protected and the other spouse generally has no
claim against such property. For instance, in Arizona, the divorce court has no
jurisdiction to apportion separate property. By contrast, in equitable
distribution states, the divorce court often has the authority to apportion
marital and non-marital assets between the parties.
•
Knowing whether your pre-nuptial agreement is to operate within the confines
of a community property state, an equitable distribution state, or possibly both
is therefore crucial to how you draft your agreement.
9
Uniform Premarital Agreement Act (“UPAA”) requirements:
- An agreement between prospective spouses (§1);
- In contemplation of marriage (§1);
- Conditioned on marriage actually occurring (§§1,4);
- In writing (§2);
- Signed by both parties (§2).
- Note: No contractual consideration is required to support a
Prenuptial Agreement (§2). Accordingly, you may want to
avoid including traditional “consideration” language in
your Agreements as such language may open the
Agreement to a possible challenge for a “failure of
consideration” later.
10
Basic Requirements for a Presumptively Valid
Premarital Agreement
Many States Add Variation to the Act’s Basic
Requirements…
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