Fletcher: Uh, huh, and it says here you were born in 1964, but that’s not true either is it? Is it!
Fletcher: Please tell the court what’s on your birth certificate under Date of Birth.
Dana: Your honor, I object. What does this have to do with anything?
Judge Stevens: Overruled. Mrs. Cole, answer the question.
Fletcher: Now let get this straight. That means you lied about your age to make yourself older. But why would any woman want to DO THAT?
Samantha: I changed it so I could get married.
Fletcher: AND THE TRUTH SHALL SET YOU FREE! My client lied about her age! She was only 17 when she got married, which makes her a minor. And in the great state of California, no minor can enter into any legal contract without parental consent.
Fletcher[to Dana]: Including…?
Dana [sighs]: Prenuptial agreements.
Fletcher: Prenuptial agreements! This contract is void! The fact that my client has been ridden more than Seattle Slew is irrelevant. Standard Community Property applies and she is entitled to half of the marital assets, or $11.395 million. Jordan fades back, swoosh, and THAT’S THE GAME! Nothing further, your honor!
–Liar Liar (1997)
Jim Carrey’s character sure was happy to defeat that premarital agreement. But remember, since the rules of the universe require balance (i.e., for every Michael Jordan, there must be a Craig Ehlo), there must have been a corresponding disappointment felt at the other divorce counsel’s table. Which table would you have preferred to be at?
This month, we’ll look at two books that address marital agreements that are great for divorce lawyers. The first focuses on the front end of divorce cases: drafting and negotiating. The second focuses on the back end of divorce cases: attacking and defending. Each treatise is an excellent addition to your divorce and family law library, with powerful analyses and thorough research.
PREMARITAL AGREEMENTS: DRAFTING AND NEGOTIATION
Linda J. Ravdin’s Premarital Agreements: Drafting and Negotiation addresses all aspects of contracts between prospective spouses made in contemplation of marriage. Her analysis examines older divorce cases, newer divorce cases, state statutes, and the Uniform Premarital Agreement Act. Her approach is designed to assist the divorce practitioner in the field with practical commentary, advice and possible provisions.
Premarital Agreements cover with regards to divorce law: the law on validity; the steps to creating a valid prenuptial agreement; practical techniques for negotiating terms of the prenup; the content of the premarital agreement; drafting techniques to meet the objectives of the prospective spouses in the divorce parties; post-execution issues; and ethical matters. Specific attention is given to governing divorce and family law and criteria for validity, legal theories used to attack validity, the voluntariness requirement, the concepts of duress and undue influence, spousal support, attorney’s fees, non-financial issues and terms relating to an ongoing marriage. There is special attention given to Second-Look states, such as Michigan.
Ravdin helps us fulfill our role as divorce lawyers representing one side or the other. She examines practical aspects of negotiating terms in divorce cases and discusses issues that arise after execution as a means of helping us better understand drafting issues with the premarital agreement and ensuring that the client’s bargain is well documented.
In numerous areas, the handbook provides summaries of “Best Practices,” which is essential for divorce and child custody lawyers to know. An example from the chapter on creating a valid prenuptial agreement includes this advice:
. . . [T]he stronger party will reduce his or her risk by making provisions for the other party such that he or she will not become impoverished as a result of the marriage and the terms of agreement. Ideally the written record would show:
- The weaker party received a proposed draft agreement enough in advance of the wedding that he or she had a meaningful opportunity to consider the terms, get legal advice, and negotiate for better terms;
- Actual legal representation or a meaningful opportunity for such representation;
- An actual negotiation in which the proponent made changes requested by the weaker party; and
- When there is a significant disparity in resources that is likely to be perpetuated, some provisions are made for the weaker party upon death or dissolution to provide some degree of financial security.
Premarital Agreements includes the text of detailed model prenup agreements. There are agreements for: the Title-Controls approach (with provisions for the weaker party); Same-Sex relationships; and the Shared-Property approach. Each component of the prenuptial agreement is reviewed so that we can choose the best fit for our divorce client’s needs. There are worksheets and questionnaires, optional provisions, form letters for divorce clients, and form letters for unrepresented parties for the divorce attorney to use. The 472 page handbook includes a CD-ROM with forms and appendices.
Linda Ravdin is an experienced family lawyer with an expertise in premarital and marital agreements. In June 2005, Washingtonian magazine called her “one of the nation’s leading specialists” in premarital agreements. Ravdin practices family law in Bethesda, Maryland, and has published three other family law treatises.
Brett R. Turner and Laura W. Morgan’s Attacking and Defending Marital Agreements addresses what happens after a premarital agreement is signed and the processing of challenges to marital agreements. Their scope includes premarital agreements, postnuptial agreements, and separation or marriage settlement agreements.
Why write another book on marital agreements? . . .
The answer lies in the viewpoint from which the existing works are written. These works generally approach marital agreements from the viewpoint of the attorney who must negotiate and draft a marital agreement. . . . The existing works provide considerable guidance to the drafter, but they provide very little guidance on questions of validity or construction. . . . After struggling for several years to use drafting-oriented treatises for guidance on postdrafting issues, we decided to address the need ourselves. This treatise, now in its second edition, continues to primarily address what happens after a marital agreement is signed by the parties. While we offer drafting tips at appropriate points, our primary focus is upon the twin issues of validity and construction. . . . [T]his work approaches questions of validity and construction from the same viewpoint the court will stand at when it resolves these questions.
This second edition treatise examines the manner in which divorce courts have answered questions of validity and construction of prenups. While there are some drafting tips of the prenuptial agreement, the focus remains on enforcement issues from the viewpoint of a divorce and family court. Their objective is to help divorce and family lawyers identify and make the best argument possible under the circumstances, using the common law as our guide.
Turner and Morgan are very transparent in the biases that flow from their analyses. From the very beginning, they alert the reader to these conclusions:
The reader will find that we are strongly against clauses preventing the parties themselves from modifying their agreement, and strongly in favor of verifying informal financial disclosure through the formal discovery process. We cautiously support provisions terminating spousal support upon proof of cohabitation alone, where they are an attempt to avoid the practical problems of proving financial dependency or similarity of the relationship to remarriage, and not a device to control postmarital sexual behavior. We confess to particular distaste for nonmodifiable spousal support provisions, which we liken to playing Russian roulette with the parties’ financial futures.
Since research attorneys spend their time with the law (in this case, divorce and family law), Attacking and Defending Marital Agreements includes extensive legal analyses with supporting authorities for each legal assertion provided in the footnotes. Turner and Morgan communicate clearly and provide appropriate context for their commentary on prenuptial agreements. They also note the inherent tension between two competing public policies present in any challenge to a marital agreement. There is the judicial preference in favor of “negotiated settlements of private disputes.” And there is the awareness that “divorce is an emotionally difficult time in the lives of almost all litigants,” and that the “possibility of overreaching” is looming for the divorce courts.
This handbook spans 581 pages. The appendices include a bibliography, a “Mini-Encyclopedia of Ambiguous Marital Agreement Provisions and Their Construction by the Courts,” sets of relevant discovery materials on validity, sets for premarital agreements, a 73-page table of cases, and an index.
Turner and Morgan are professional research attorneys. Practitioners from across the country, including divorce and family law attorneys, hire them to research, analyze and write memoranda and briefs at all levels of the court system. Turner is a Senior Attorney in Family Law with the National Legal Research Group (NLRG). Morgan operates Family Law Consulting. In addition, they each have written other major family law treatises. Morgan wrote Child Support Guidelines: Interpretation and Application, and Turner wrote Equitable Distribution of Property.
The two handbooks featured this month cover the front and back ends of marital agreements. They arm divorce and family lawyers with powerful analyses and thorough research that we can use to protect our clients during the divorce proceedings and process. The truth from these authors and from our clients will set you free, free enough to proclaim: “That’s the game! Nothing further, your honor!”
Linda J. Ravdin, Premarital Agreements: Drafting and Negotiation (2011, American Bar Association). $139.95.
Brett R. Turner, Laura W. Morgan, Attacking and Defending Marital Agreements, Second Edition (2012, American Bar Association). $159.95.