162 DIVorCe wItH DeCenCY
divorce came head to head with our society’s spiraling divorce
rate and its attendant effect of jamming up family court calendars
around the country.
Eventually a decision was made by legislators in several states
that it would be easier to streamline the processing of divorces
based upon pre-agreed contracts than it was to keep chasing
them all through the increasingly cluttered, and expensive, con-
tested divorce case calendars. Now many jurisdictions do allow
premarital agreements to be enforced if and when the marriage
turns into a divorce. The courts in these states will follow the
terms of the premarital agreement if it was properly drafted and
executed.
Are prenuptials legally enforceable? The key criteria for a valid
and enforceable premarital agreement are: (1) it must be entered
into freely—without coercion, fraud, or duress; (2) both parties
must have the opportunity to consult with independent legal
counsel before signing the agreement; and (3) there must be a
full disclosure of all the assets of both parties. Failure to disclose
all assets can be viewed as fraud and may be sufficient to invali-
date the entire agreement. Furthermore, many courts have refused
to recognize premarital agreements that they find to be unconscion-
able, not voluntary, or so one-sided as to be blatantly unfair to the
other spouse. The bottom line, however, is that in many jurisdic-
tions properly handled premarital agreements will be binding
and enforceable.
Prenuptial agreements are rapidly increasing in popularity.
As a twice-divorced physician client of mine quipped during the
signing formalities for the premarital agreement that accompa-
nied his third marriage, “Marriage is the most important contract
you will ever make. People should be fully advised and under-
stand in advance just what they are getting into.” He advocates
a mandatory premarital briefing by divorce lawyers comparable
to the physician’s doctrine requiring informed consent whereby
any and all medical operations are preceded by an exhaustive
explanation by the doctor regarding alternative options and pos-
sible consequences.
So what do I put in my prenuptial? The Uniform Marital Property
Act that was approved by the National Conference of Commis-