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People considering a premarital agreement often say they want to use the same lawyer. They’re in love. Their situation is not adversarial, and they don’t want to make it so. Surely they can resolve any disagreements without separate counsel. So why incur the expense of two lawyers? But that is the wrong instinct. Sound ethical and practical reasons exist why a lawyer should usually refuse to represent both parties to a premarital agreement. Although local laws differ — Virginia and the District have adopted the Uniform Premarital Agreement Act, Maryland has not — the single essential requirement for upholding the validity of premarital agreements in all three jurisdictions is voluntariness. Full financial disclosure is not a prerequisite; parties may waive disclosure so long as the waiver is voluntary and express. Independent counsel is not a requirement. The agreement need not even be substantively fair. But the weaker party must have signed on voluntarily. WISHING FOR AN AGREEMENT How does an economically stronger party seeking a premarital agreement protect that agreement from future attack by a disgruntled spouse? While suits challenging the validity of such agreements are rarely successful, they are expensive to defend, and they put the stronger party’s assets at risk. Fortunately, the conduct of the proponent’s lawyer when the agreement is drafted can reduce the chances of a challenge years later. • Persuade the other party to retain counsel. The most important thing the proponent’s attorney can do is to persuade the other party to retain a lawyer. The Maryland Court of Special Appeals stated explicitly in Harbom v. Harbom (2000), “[I]nequality of [bargaining positions] may be cured by access to legal counsel by the party in the less advantageous bargaining position.” The more disadvantageous the agreement is to the weaker party, the more crucial it is that he or she have independent advice. • Assist the other party in hiring counsel carefully. A delicate balance must be struck between providing enough help to ensure that the weaker party has a meaningful opportunity for independent advice and becoming so involved as to interfere with the independence of that advice. Offering a list of competent lawyers or directing the person to referral services or online databases is appropriate. Trying to control the choice of counsel is not. • Offer financial assistance to the weaker party. A person without sufficient funds does not have a meaningful opportunity to retain counsel. If an offer to pay that party’s attorney fees will cause a person who would otherwise forego independent representation to get a lawyer, the person with substantial interests to protect should offer to pay. • Provide an opportunity to negotiate changes. Inviting the other party to suggest changes to an agreement can show voluntariness. When the weaker party actually has a lawyer propose changes, that party will have virtually no chance of mounting a successful challenge later. The very act of signing after negotiations have taken place, even if the stronger party refused to make changes, demonstrates that the weaker party acted willfully. • Advise the stronger party of the risks of driving too hard a bargain. Judges cannot enforce an agreement’s terms selectively. Where the result is harsh, therefore, a judge who wants to rescue a dependent spouse may find a way to hold the agreement invalid. Even in Posner v. Posner, a key 1970 Florida Supreme Court case that actually rejected long-standing precedent against premarital agreements, a minor flaw in the husband’s financial disclosure was used to invalidate an agreement that provided $200 in monthly alimony from a man who was worth $10 million. AGREEING TO AN AGREEMENT As noted, the mere presence of counsel for the weaker party tends to insulate an agreement from attack. Indeed, the more forcefully counsel advises against signing, and the more clearly disadvantages are explained, the more likely it is that an agreement will be enforceable. The only realistic point at which a lawyer can do anything for the weaker party is during the drafting. At the time, the lawyer can: • Ensure that the party has no illusions that a bad bargain can be undone later. • Obtain adequate disclosure of the stronger party’s assets and income. • Attempt to negotiate fairer terms than may have been proposed initially. • Ensure that the agreement accurately states the parties’ intentions and expressly states all promises. • Explain the terms in a way that a reasonably intelligent adult can understand, including the marital rights he or she has in the absence of an agreement. • Ensure the weaker party understands that an oral promise, e.g., to cancel the agreement after the marriage, may be unenforceable or unprovable. • Advise the party about protective steps to take during the marriage. These may include not leaving the work force, not moving to further the spouse’s career, preserving a separate estate, and obtaining adequate disability and other insurance. It may also include seeking amendment or cancellation of the prenuptial agreement after a reasonable period. WHO’S REPRESENTING WHOM? What if, despite the best urging, the weaker party refuses to employ counsel? Rule 1.7 of the Rules of Professional Conduct permits parties to waive the conflict in directly adverse joint representation. But the parties’ waiver is not enough. The lawyer must also be satisfied that he or she can adequately represent both. Bear in mind that the lawyer likely cannot determine this until each party has provided financial disclosure and discussed objectives. When the proposed agreement is highly disadvantageous to one party, a lawyer representing both is in a poor position to counsel the weaker party not to sign or to insist that the stronger party make concessions. Last but not least, an attorney for one party must never create the impression that he or she is acting for both. Whether an attorney-client relationship is formed turns on the subjective belief of the client. In other words, a lawyer’s conduct may constitute joint representation even when the lawyer did not intend such. Where this occurs, and where the attorney did not give adequate explanation and obtain informed consent to the joint representation, the prenuptial agreement is vulnerable. To avoid that outcome, a lawyer advising on a prenuptial agreement should not do the following: • Don’t act as a mere scrivener. Some cases support the notion that when an attorney merely drafts an agreement in accordance with terms dictated by the clients, he or she need not give any advice or inquire into the underlying facts. But to carry out such a limited role, the attorney must remain consciously ignorant of facts that any competent adviser would want to know. The validity of any agreement so drafted can be called into question. • Don’t meet with the two parties together. When the attorney meets with both the future husband and wife to discuss the agreement, the weaker party may conclude that the attorney is acting in a neutral capacity. Even when that conclusion is unreasonable, it exposes the stronger party to the risk of later litigation. • Don’t prepare new wills for both parties in anticipation of marriage while representing only one party on the premarital agreement. It is easy to see how parties might assume that the lawyer is acting for both of them on the premarital agreement. • Don’t represent one party regarding the premarital agreement if one has earlier represented the other party in the divorce. Again, it is easy to see how the latter party might rely on the lawyer to look out for that party’s interests. Remember that a solid premarital agreement arises out of a fair process. If the weaker party understands the agreement and voluntarily chooses to sign it, the agreement should stand. Linda J. Ravdin is a partner in the Bethesda, Md., law firm of Pasternak & Fidis, P.C., practicing with the domestic practice group. Ravdin is the author of TM 849, Marital Agreements (Tax Management Inc., 2003), a guide to premarital, postmarital, and domestic partnership agreements. She can be reached at [email protected].

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