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Signing a Preunup: The Devil Made Me Do It!

Those of us of a certain age will remember that in the distant history of the 1970’s, comedian Flip Wilson, made famous the phrase, “The Devil Made Me Do It.” It was basically a catch-all meme that he used to avoid blame for any real or imagined sin that he or his character had committed. In other words, “I am not responsible for my actions as the Devil Made Me Do It.” In the context of this blog, the “Devil” is the spouse of a party challenging the validity of a prenuptial agreement.

In my 48-year career as a family lawyer, I have drafted, reviewed, challenged, and defended dozens of prenuptial agreements. Such agreements have become commonplace as a vehicle to modify or totally opt out of the California Community Property system; to transmute separate property to community property or the separate property of the other spouse, or to limit – or even extinguish – spousal support rights and obligations.

Because of the rather draconian results of these agreements, the legislature, and the courts reviewing legislation, have imposed strict rules and regulations concerning the validity of the agreements. Counsel embarking on the creation or review of a prenuptial agreement would be well advised to become well-versed on the intricacies and nuances of the laws that relate to these agreements.

Did Parties Voluntarily & Knowingly Enter into These Their Prenups?

However, in my 48 years of dealing with these agreements, I have found that the greatest challenge to the validity of the agreement does not lie with the content of the agreement, but rather whether the parties freely and voluntarily and knowingly entered into the agreement. In other words, did the party challenging the agreement only sign the agreement because “the devil made me do it”? Although it is nearly impossible to ensure against such an attack on the agreement, there are certain procedures that will mitigate the grounds for the attack.

I encourage counsel to engage an impartial third-party professional to conduct a meaningful and complete voir dire of both parties. The voir dire should be videotaped by a professional deposition videographer.

The examination of the parties could include, but not be limited to the following lines of inquiry:

  • When did the parties become engaged to be married?
  • When did the idea of the parties entering a prenuptial agreement first arise?
  • Who first raised the prospects of such an agreement?
  • What was the discussion concerning the reason for a prenuptial agreement?
  • When the topic of the agreement was first raised, what was the status of wedding planning? Had invitations been sent? Had a wedding venue been selected? Were family members and bridal party members aware of the upcoming wedding?
  • Has the other party even warned you that if you don’t sign the agreement, the marriage is off?
  • On what date did you first receive a draft of the prenuptial agreement?
  • On what date did you first receive the final draft that is being signed today?
  • Have you read every word of every page of the final draft of the agreement?
  • On what date did both parties receive the financial disclosure documents of the other party?
  • What separate investigation have you conducted to understand the completeness of the financial disclosures of the other party?
  • Have you spoken to accountants or financial advisors of the other party to understand the contents of the opposing party’s disclosures?
  • Did the two of you come to this signing ceremony together?
  • What discussions did the two of you have today concerning the agreement?
  • Have you consumed any alcohol or drugs that could impair your ability to knowingly enter into a legal agreement?
  • Have there been any promises made by the other party that are not contained in the agreement?
  • In general, what is your understanding of the purpose and effect of the agreement?
  • If the marriage fails in 5,10, or 20 years, what property or spousal support rights do you possess?

The voir dire process could be lengthy and uncomfortable for the parties and counsel. However, if the parties are spending thousands of dollars to create this agreement, and the purpose of the agreement is to avoid a transfer of wealth of tens or hundreds of thousands of dollars, the added inconvenience and expense of these formalities is a reasonable insurance policy to prevent a later challenge to the agreement on the basis that “The Devil (other spouse) made me do it.”

If you are representing parties that are entering a prenuptial, postnuptial or marital settlement agreement engage an impartial professional to conduct a thorough review of the agreement and voir dire of the parties, by contacting David E. Wald, attorney at law.

You can get in touch by contacting him online or by calling (949) 590-8100.