Drafting Enforceable Premarital and Postmarital Agreements - - PowerPoint PPT Presentation

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Presenting a live 90-minute webinar with interactive Q&A

Drafting Enforceable Premarital and Postmarital Agreements

Structuring Choice of Law and Forum Clauses, Evaluating State Law Similarities and Differences, Navigating Estate Planning Issues

Today’s faculty features:

1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific WEDNESDAY, FEBRUARY 1, 2017

Richard G. Kent, Partner, Meyers Breiner & Kent, Fairfield, Conn. Jennifer M. Riemer, Partner, Walzer Melcher, Woodland Hills, Calif.

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DRAFTING PREMARITAL AND POSTMARITAL AGREEMENTS

Strategies for Crafting an Enforceable Agreement

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PRESENTERS

Richard G. Kent Meyers Breiner & Kent Fairfield, Connecticut 203-255-9410 rkent@mbnllp.com Jennifer M. Riemer Walzer Melcher LLP Woodland Hills, California 818-591-3700 jmr@walzermelcher.com

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OVERVIEW

Differences between premarital

agreements and postmarital

• agreements. (RGK)

How to discuss and negotiate these

agreements (RGK)

Structuring the agreement (JR) Choice/conflict of laws for multistate

• r international couples (JR)

Getting retained and paid (JR)

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WHO NEEDS A PRENUP?

A party who wants to protect

separate assets. (JR)

A party who has a professional

practice or other service business, and wants to avoid or limit a community interest. (JR)

The other party has substantial

debt, or an alimony obligation from a prior marriage. (JR)

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BENEFITS OF A PRENUP

Promotes communication about finances

and expectations of each party before

• marriage. (RGK)

Provides certainty as to their rights and

• bligations on divorce. (RGK)

May reduce, or could increase chances of

litigation upon divorce. (RGK)

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WHAT A PRENUP CAN DO

Keep premarital property off limits

(JR)

Limit or waive spousal

support/alimony. (JR)

Specify rights on death and to life

• insurance. (JR)

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RISKS OF PROPOSING ONE

Neither party appreciates an

attorney’s intrusion into their idyllic expectations of love and

• marriage. (JR)

Agreements demonstrate a lack

• f trust. (JR)

Agreements dampen romance.

(JR)

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SOCIETAL VIEWS

Premarital agreements place

emphasis on the individual over the

• couple. (JR)

The wealthy may have an advantage

• ver the less wealthy. (JR)

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HOW TO DISCUSS A MARITAL AGREEMENT

Talk to your fiancé (RGK) Work with a marital counselor

(RGK)

Have the lawyers broach the topic

for the first time (RGK)

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3 KEY ELEMENTS TO A PRENUP

Timing (RGK) Disclosure (RGK) Independent Counsel (RGK)

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TIMING

How far in advance must the

agreement be presented? (RGK)

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DISCLOSURES

What must be disclosed? (RGK) Attach disclosures to the agreement so there is

no question what was disclosed. (RGK)

The disclosure should give meaningful

information about the party’s income, assets, and obligations. (RGK)

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INDEPENDENT COUNSEL

Is the attorney “independent” if paid by

the other party? (RGK)

Can a party waive the right to counsel?

(RGK)

What is required to show that an

unrepresented party understood the prenup? (RGK)

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GENERAL LEGAL REQUIREMENTS

Must be in writing and signed by both

• parties. (RGK)

May agree on any matter regarding rights

• n death or divorce, not in violation of

public policy. (JR)

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PUBLIC POLICY LIMITS

 Child support. (RGK)  Child custody. (RGK)  Religious upbringing of children. (RGK)  Support of a spouse during marriage. (RGK)  Penalties for spouse not performing marital

• duties. (RGK)

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BUILDING A STRONG AGREEMENT

Avoid last-minute agreements. (JR) Allow for changes.(JR) Do not include provisions which violate

public policy. (JR)

Follow the law in your state (e.g., the

Uniform Premarital Agreement Act). (JR)

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PROPERTY ISSUES

No property vs. limited property rights

during marriage. (JR)

Lump sum payment? (JR) Payment for each year of marriage? (JR) Waiver of property rights in loan

• proceeds. (JR)

Waiver of rights resulting from efforts of

spouse during marriage. (JR)

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RETIREMENT BENEFITS

Federal law controls (JR) Need to have waiver of those

rights executed after marriage. (JR)

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CHOICE OF LAW

Be aware of interstate and

international law issues when parties are living in separate places

• r where they contemplate moving.

(JR)

Complex area. Consult with local

counsel as to whether the agreement would be enforceable in that

• jurisdiction. (JR)

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ENFORCEMENT IN OTHER JURISDICTIONS

Every state and country different.

(JR)

Some countries do not honor

premarital agreements. (JR)

Most countries have premarital

• regimes. (JR)

Advise client in writing to client you

can only give advice on the law of your state. (JR)

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DEFENSES

 Unfairness is typically not a defense. (JR)  Duress. (JR)  Unconsionability (JR)  Procedural: The agreement was presented in a one-

sided, take-it-or-leave-it fashion.

 Substantive: The terms are so one-sided as to shock

the conscience of the court.

 Promotive of divorce? (JR)  Mistake of fact or law. (JR)

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BURDEN OF PROOF

The burden of proof is typically

• n the party challenging the
• agreement. (JR)

California has a presumption of

invalidity if certain preliminary facts are established. (JR)

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OTHER TRIAL ISSUES

Introducing a copy into evidence

when the original is not available. (RGK)

What happens when a party claims

that his or her signature was forged? (RGK)

Requesting a trial on the validity of

the agreement separate from the

• ther issues in the case. (RGK)

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AMENDING PRENUPS

Not a good idea, especially if your

state recognizes interspousal fiduciary duties. (JR)

Better to keep the prenup intact and

do a postnup. (JR)

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HOW POSTNUPS ARE DIFFERENT

Treated with stricter scrutiny than

• prenups. (RGK)

In some states, any postmarital

agreement in which one party received property without consideration in an interspousal transaction is presumed to be the product of undue influence. (RGK)

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RETAINER AGREEMENT

May include advice to client about

the limits of prenups in the retainer

• agreement. (RGK)

Contact Richard G. Kent for sample

CT prenup and retainer agreement (RGK)

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HOW MUCH TO CHARGE

These agreements involve a lot

• f risk. (JR)

What is that risk worth to you?

(JR)

Typical fee arrangements. (JR) Rich and famous (JR)

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THE FUTURE OF PRENUPS & POSTNUPS

 The Uniform Premarital and Marital Agreements

Act (UPMAA) (JR)

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jmr@walzermelcher.com Jennifer M. Riemer Richard G. Kent rkent@mbnllp.com

10/2/13