Drafting Prenuptial Agreements... A Multi-Practice Endeavor
In a recent meeting between potential husband and wife I encountered a number of questions that prompted this short discussion on prenuptial agreements. Although these types of agreements can be uncomfortable and sometimes even embarrassing to draft, they are nonetheless a great idea in the right situation. These are extremely sensitive matters that need to be handled delicately, and by the right team of attorneys.
At first look, one may argue that the prenuptial agreement is simply a matter for a family law attorney. However, on a second glance it becomes clear this is a multi-practice endeavor. Let me explain and I think you will be persuaded.
First, we all can see why a Family Law attorney would be the initial choice to draft this agreement. The Florida Statutes addressing prenuptial agreements, alimony, asset distribution, and child support and custody are all issues that are traditionally dealt with by Family Lawyers.
Second, an Estate Planning attorney must be consulted while drafting a prenuptial agreement. A lawyer familiar with probate, elective share and spousal rights is crucial to drafting this document properly. Also, it will not hurt that the Estate Planner will have a good working knowledge of retirement plans and other investments. More likely than not, the couple’s financial advisor will also be a necessary component of the team.
Lastly, isn’t a prenuptial agreement essentially, just a contract between two individuals. Contract Law is therefore prevalent in determining whether the agreement is enforceable. Both parties must agree to all the terms and conditions and there must be the basic contract formalities of an offer, and acceptance and consideration. Also, contracts made under duress/coercion are generally unenforceable as well. This, in some cases, is very easy to prove in a prenup case.
In conclusion, it is best to attack the drafting of a prenuptial agreement utilizing the expertise of attorneys and even non-legal professionals of multiple disciplines. Employing all the experts will help ensure the client’s objectives are achieved as planned.