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Planning For Divorce

If Getting Married Were Just About Love, Would it be Easy?

By Barry M. Wayne

Planning for divorce is tricky business, particularly when the planning takes place at about the same time as planning for a wedding. Yet, this is precisely what marital and family lawyers must do when drafting and negotiating pre-marital agreements. These agreements, also often referred to as “prenuptial” and “ante-nuptial” agreements, present clients and attorneys with more than challenging financial issues. Oftentimes, the emotional overlays take center stage. The successful conclusion of such a transaction depends on the skill and willingness of the attorneys to educate their clients and prepare a legally binding agreement. It also requires a thorough understanding of the dynamics that brings together two people about to share their lives, but not their money.

While one might typically believe there are two parties to these agreements, and although this is generally the case, oftentimes the driving force behind the scenes is not those who are about to recite their wedding vows. Wealthy parents, grandparents, business partners, and even grown children can pressure the bride or groom to take action. This dynamic, coupled with the fact that more people are getting married later in life, creates an increased awareness that one can plan for the worst while hoping for the best. 

When one enters into a marriage, the state makes the “rules” if the marriage fails and ends in divorce. Entitlements under these rules are not always easy to predict. Pre-marital agreements can supplant the state’s involvement in large part and change the rules. They can provide a greater degree of predictability and control. These agreements need not address every issue that might arise, and oftentimes do not. For example, agreements that principally waive marital claims only against business interests are commonplace. Then again, so are agreements that cover multiple issues. These agreements generally contain provisions for post-marriage alimony or perhaps alimony waivers, property distribution and entitlements upon death. The agreements are as varied as the couples who sign them.  Agreements involving high net worth clients routinely require the participation of attorneys with specializations in other practice areas such as tax, corporate, and trusts and estates. Family accountants, financial professionals and even therapists can also be instrumental in the successful conclusion of a pre-marital agreement.

The most common misconception about pre-marital agreements is that they are “cookie cutter” documents, which should be available at the local bookstore or the legal website de jure...simple right?   Like anything worth doing, pre-marital agreements are of little or no value if not properly prepared.
Pre-marital agreements are technical documents. Dabbling is not recommended. Attorneys who prepare these agreements must remain current as statutory and appellate law continually evolves and the manner in which certain issues are addressed must be adapted and tailored to meet the client’s needs, as well as the requirements imposed by the legislature and appellate courts.

The “process” is just as important as the product. It might be surprising to find out that some people actually enter into pre-marital agreements believing that if need be, they can simply find an attorney to set them aside. Understanding the legal theories required to successfully challenge an agreement is the cornerstone to taking those steps that best protect the client from a challenge.  Coercion, duress, fraud and failure to properly disclose financial circumstances are among the attacks most often advanced.

Speaking of process, the wedding ceremony is not the only ceremony in a growing number of modern-day nuptials. The happy couples’ first ceremony might just be the signing ceremony.  For decades, mindful that when money is involved disputes often follow, attorneys have made a record of testators signing their last will. Like will signing “ceremonies,” pre-marital agreement signing ceremonies are now commonplace. Just like the wedding, they include someone to officiate, witnesses, videographers, and believe it or not, sometimes even the local caterer makes an appearance.  

The work is not over once a signed agreement is in place. Clients must understand that pre-marital agreements are contracts. These agreements should not be filed away and forgotten. They often include ongoing obligations that might require opening and funding financial accounts, securing life insurance coverage, the preparation of estate plans, the execution of documentation related to qualified retirement accounts as well as other actions.  Pre-marital agreements should be reviewed from time to time, particularly before embarking upon major transactions.  
Ask anyone if they know the marriage success rate and most will tell you “fifty percent.” This is a statistic that is hard to ignore, and more often than ever before, people are seeking marital planning advice. In today’s world, love and marriage still matter. Nevertheless, the business of marriage requires careful pre-marital planning. It is tricky business, indeed.

Barry M. Wayne is a partner at the law firm of Bluestein and Wayne, P.A. in Coral Gables. He is board certified in marital and family law by The Florida Bar and he currently serves on The Florida Bar Marital and Family Law Certification Committee. He is a member of the Miami-Dade County
Bar Association, the American Association for Justice and the American Bar Association.

South Florida Legal Guide Midyear 2012 Edition

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