e. Best Practices. (1) The parties should have independent counsel. If Independent Counsel. the other party lacks the resources to pay for counsel, your client should offer to pay. (2) Raise the topic of having a premarital agreement several Timing. months before the wedding. Present a draft for review at least one month prior to the wedding. (3) The more the better. To avoid doubt as to Financial Disclosure. income, exchange income tax returns. (4) If representing the Disadvantaged Future Support. Spouse’s disadvantaged spouse, make sure he or she will have enough resources for support in the future. For example, if one party is protecting a family business interest, there may be little marital property. The agreement could provide for deemed marital property based on the length of the marriage. (5) The ownership of the family home, especially for the Home. disadvantaged party, may be extremely important. He or she may be willing to forfeit substantial economic rights to be able to keep the home. (6) If there have been substantial gifts during the marriage, Gifts. disagreements may arise upon divorce as to who owns the property. To avoid those disputes, consider including a clause that property purchased during marriage in excess of, say, $10,000 will be deemed to be the property of the person who purchased it with his or her own property. (7) ERISA provides that an agreement prior to Retirement Benefits. marriage will not waive ERISA rights. The agreement should include a clause requiring the parties to execute a confirmation of the agreement after the wedding. Attach to the document the form that the parties agree to sign later. (8) Consider a provision that a party challenging the Legal Fees. agreement must pay the attorney fees of the other party in the challenge action. (9) Consider including a confidentiality clause. Confidentiality. (10) Some agreements include provisions requiring Prohibited Conduct. the payment of a penalty upon the occurrence of certain prohibited conduct, such as unfaithfulness (purportedly this was in the Michael Douglas agreement).The Uniform Acts do not address whether these types of provisions are enforceable, and there is inconsistent case law. (11) The agreement should address income taxes that will be borne Taxes. by each party with respect to his or her portion of the marital property. 41. Pre-Mortem Planning a. Obtain Copies, Review and Update Documents.
e. Best Practices. (1) Independent Counsel. The parties should have independent counsel. If the other party lacks the resources to pay for counsel, your client should offer to pay. (2) Timing. Raise the topic of having a premarital agreement several months before the wedding. Present a draft for review at least one month prior to the wedding. (3) Financial Disclosure. The more the better. To avoid doubt as to income, exchange income tax returns. (4) Disadvantaged Spouse’s Future Support. If representing the disadvantaged spouse, make sure he or she will have enough resources for support in the future. For example, if one party is protecting a family business interest, there may be little marital property. The agreement could provide for deemed marital property based on the length of the marriage. (5) Home. The ownership of the family home, especially for the disadvantaged party, may be extremely important. He or she may be willing to forfeit substantial economic rights to be able to keep the home. (6) Gifts. If there have been substantial gifts during the marriage, disagreements may arise upon divorce as to who owns the property. To avoid those disputes, consider including a clause that property purchased during marriage in excess of, say, $10,000 will be deemed to be the property of the person who purchased it with his or her own property. (7) Retirement Benefits. ERISA provides that an agreement prior to marriage will not waive ERISA rights. The agreement should include a clause requiring the parties to execute a confirmation of the agreement after the wedding. Attach to the document the form that the parties agree to sign later. (8) Legal Fees. Consider a provision that a party challenging the agreement must pay the attorney fees of the other party in the challenge action. (9) Confidentiality. Consider including a confidentiality clause. (10) Prohibited Conduct. Some agreements include provisions requiring the payment of a penalty upon the occurrence of certain prohibited conduct, such as unfaithfulness (purportedly this was in the Michael Douglas agreement).The Uniform Acts do not address whether these types of provisions are enforceable, and there is inconsistent case law. (11) Taxes. The agreement should address income taxes that will be borne by each party with respect to his or her portion of the marital property. 41. Pre-Mortem Planning a. Obtain Copies, Review and Update Documents.