The enforcement of marital agreements can be one of the more complicated forms of family law litigation. It’s not that the agreements themselves are necessarily complex, but more a matter of proving that the agreement has been respected in the daily activities of the parties.
For an agreement between spouses to be enforceable, it must be in writing and signed by both parties. But that’s just the start. To avoid the enforcement of the agreement, a party must show one of two things: Either that they did not sign it voluntarily or that when they signed the agreement, it was unconscionable when signed. If one party tries to show that it was unconscionable, they also must show that they were not provided a reasonable disclosure of the property and debts of the other party, they didn’t voluntarily and expressly waive, in writing, that disclosure, and did not know or reasonably could have known about the property or debts of the other party.
That begs the question, “what would make an agreement unconscionable”? The issue of unconscionability is one to be decided by the court as a matter of law. That means the judge will decide whether the agreement was unconscionable, but he or she must make that decision with the guidance of the prevailing case law and the facts of the case. Knowing the case law and how to apply it in the event of an attack on a marital agreement becomes very important.
Many people think of attorneys finding loopholes in the law. While normally that is not the case, it can be an aspect of attacking a marital agreement. The more complicated the agreement, the easier it may be to make multiple interpretations.
For instance, if a premarital agreement states that all of the earnings of each spouse will remain that spouse’s separate property (it would have some legal terms in there, but that’s the basic agreement), that would be a straightforward, simple agreement. But many times people want to put more structures and contingencies in their agreements. Take, for example, a man with a large estate and a high-paying career, marrying a woman who has very little. The man wants to protect his fortune in the event the marriage does not work out, but he also plans on having children and wants to provide for his fiancé if they are together for a long time. So, he puts contingent provisions in the marital agreement. If they have a child, then his wife will get a certain amount of money if they divorce. If they have two children, then she will get more money and so on. He also wants to have a section that provides for his wife to have a certain amount of money if they are married for five years, a different amount if they are married for ten years, etc.
As these provisions mount up, the complexity of the document becomes exponentially greater and the enforcement of the agreement becomes more and more difficult.
A second thing to watch for in marital agreements is how the separate estates of the parties are managed after the wedding. An agreement can be well written and unambiguous, but if one or both spouses commingle the community property with their separate property, it can destroy the original intent of the marital agreement by mixing the marital estates. If there is ambiguity in the character of the estate (whether it is separate or community), the tie always goes to the community. In other words, if the parties do not respect the separate property nature of their estates and live their lives accordingly, why should a court?
Marital agreements are not particularly difficult to conceive. However, there can be many difficult traits and very few attorneys have the knowledge and experience to draft them and advise you on how to live your financial life to protect your agreement. Nobody, after all, is attacking the agreement when it’s being signed. The attack generally comes years later when the parties are getting divorced.
For help drafting a marital agreement or standing up for what you’re entitled to when one is in place, contact the expert divorce attorneys at Orsinger, Nelson, Downing & Anderson.