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45 Fam. Advoc. 15 (2022-2023)
Pro Tips for Negotiating, Drafting, and Executing a Prenuptial Agreement

handle is hein.journals/famadv45 and id is 157 raw text is: Pro Tips for Negotiating, Drafting, and Executing a Prenuptial Agreement BY MICHELLE M. GERVAIS AND LAURYN COLEMAN E ngineering an effective prenuptial agreement requires a great game plan. As they say, the best offense is a good defense. Broaching the subject of such an agreement when a couple is in love can be a difficult and delicate task for any potential spouse, especially while they are planning their dream wedding. Thus, great care should be taken by a practitioner when drafting such an agreement, while fairly advocating for their client should a divorce, separation, or annulment (collectively termination event) ever be in their future. Not to mention, a prenuptial agreement can also come into play when one spouse predeceases the other. Here are some pro tips for best practices in negotiating, drafting, and executing any prenuptial agreement. PRO TIP #1 > Do Your Homework An effective lawyer should know not only the general laws of the state that will be`'. governing the agreement and whether that state has adopted the Uniform Premarital Agreement Act, but also should stay up to date on all recent caselaw and/or statutory changes. Further, a practitioner should always educate their client regarding public policy exceptions and general enforceability of certain provisions should the parties ever relocate during their marriage. Of course, explaining to the client all of their potential rights and obligations with and without a prenuptial agreement is paramount. PRO TIP #2 > Know Your Client It is always important to understand your 0 client's desires, prior conversations with their future spouse regarding the prenuptial agreement (if any), their bottom line for terms, and the costs they are willing to accept if those bottom-line terms are not acquiesced to by the other party. We, authors, have, unfortu- nately, been tasked over the years with both advising the other party during negotiations that the wedding was off and advising our own clients that their partner called off their engagement. Definitely not fun moments. PRO TIP #3 > Negotiations Take Time The process of negotiating, drafting, and executing a prenup- tial agreement takes months. No matter how many times we have been told that a client is in complete agreement with everything, there is always further negotiation. Generally, anticipate three to five months for the entire process. One of the first questions to ask any client is When is your legal wedding date? because the wedding ceremony is not necessarily the legal date because several cultures make their marriage legal prior to any ceremony. A general rule of thumb is to always advise your clients that it is best to have the prenuptial agreement executed at least one month prior to their marriage being legal. Of course, there are times when the marriage is right around the corner. It will be up to you based on that timing whether to take that client on, whether to have them sign a letter acknowledging your concerns regarding enforceability, or whether you are up for the task of moving heaven and earth to accomplish three to five months' worth of work in a very short time frame-many times at the expense of your personal life and of your other clients. The more time the parties have to exchange financial information, understand their rights and obligations, and negotiate, the more likely a future court will uphold that prenuptial agreement. Always include language about how long the parties have been discussing entering into a prenup- tial agreement and how long each has been familiar with the finances of the other. Obtain Independent rf~t Legal Counsel Each potential spouse should always hire their own lawyer to represent their individual - interests. The party desiring the prenuptial agreement should always ensure the other party has the means for that party to hire independent legal counsel. There should be no direct contact between one party who is represented and counsel for the other. Obtaining independent legal counsel is essential. In the rare circumstances where the other party refuses to obtain counsel, include language regarding the other party being advised to hire legal counsel and that party refusing to do so despite knowing that the agreement will be binding and that they understand that they may be entitled to more without any prenuptial agreement. PRO TIP #5 > Confidentiality and Nondisclosure Agreement It is important to have the parties execute a mutually accepted confidentiality and nondisclosure agreement. Financial information is extremely sensitive, and neither SPRING 2023 15 Published in Family Advocate, Volume 45, Number 4, Spring 2023. © 2023 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

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