INDEPENDENT COUNSEL. A request frequently made of matrimonial attorneys is to “represent both of us”. After all, the relationship between the parties is amicable, if not romantic, and “everything” has allegedly “already been worked out”. “We just want you to prepare something quick and simple, and we’ll both sign off” are words that have been heard by most experienced family lawyers. But let there be no question: it is imperative for each party to have separate counsel, and such counsel should be independent.
Even the practice of recommending several names for the other spouse to choose from should be avoided, to avoid the appearance of undue influence or other impropriety. Although the Act authorizes a signatory to a premarital agreement to knowingly waive the right to counsel, prudent attorneys will insist on separate independent representation for each party. Ideally, each party should be responsible for the payment of her or his counsel fees. However, if one party pays for the other’s fees, whether by loan or by gift, the relevant facts should be explicitly set forth in the agreement.
REASONABLE TIME. The circumstances surrounding the negotiation and execution of the agreement should be devoid of duress. The most common example of unacceptable pressure is the presentation of a draft agreement, on the eve of the contemplated marriage, or, in the most extreme case, literally on the actual date of the wedding. If you find the latter implausible, you need look no further than the pending litigation between billionaire Carl Icahn and his wife.
Presumably to protect as much of his wealth as possible, Mr. Icahn insisted upon a premarital agreement. However, not only was the agreement signed on the day of the wedding, the bride was 2 months pregnant. It would be hard to conceive of a situation more inherently coercive. Yet, the New York court sustained the validity of the agreement under New York law (where the Uniform Act has not been enacted), demonstrating again the absolute necessity of understanding the law of the applicable jurisdiction. The last chapter of the Icahn saga has yet to be written, since the validity of the prenuptial agreement is now being litigated again in Connecticut, where the Act does apply (C.G.S.A. #46b-36a et seq.). But the lesson to the wary is clear: the more time between the date of execution and the wedding, the better. Indeed, some family law lawyers make it their practice to avoid undertaking the representation, unless enough time is allowed. How much time is enough? Only developing case law and the unique facts of each situation can provide the answer. Perhaps a working suggestion for a “cutoff” date might be before the wedding announcements and invitations are mailed.
In the last analysis, there is every reason to believe that a carefully drawn premarital agreement will be sustained against an attack of invalidity, provided that all the F.A.I.R. rules are fully observed and implemented.