The divorce of billionaire Kenneth Griffin and his spouse, Anne Dias Griffin has focused a lot of news attention on prenuptial agreements in Illinois.
Engaged couples typically want to talk about the possibility of entering into a prenuptial agreement and are seeking advice as to what should be considered before executing one.
Here are three rules that all couples should consider before signing on the dotted line of a prenuptial agreement:
1. Seek Separate Counsel
The husband and wife to-be must be represented by separate counsel. This ensures that they receive independent advice regarding the benefits and liabilities of the agreement. It is absolutely prohibited that the same attorney represents both parties in the negotiation and execution of the prenuptial agreement.
Unfortunately, I have found a couple of circumstances where the “independent” attorney was an associate of an attorney in the same firm. I would not even recommend this since there could be an argument that the two counsels representing the two parties were not actually acting independently and in the best interest of their respective clients.
2. Disclose Everything
There must be absolute disclosure of all current and potential assets of both parties. The parties must be informed of the assets in the potential marital estate so there can be a waiver or release of rights to the assets of the other spouse prior to the execution of the agreement.
Any misrepresentation, even small or seemingly innocent mistakes, can result in a collateral attack on the prenuptial agreement at the time either party seeks to enforce it.
3. Sign at Will
There must be no question of “free will”. The parties entering into the prenuptial agreement cannot be pressured, threatened, or hurried in a way that could be considered prejudicial to the party entering into the prenuptial agreement, especially to the party giving up rights to the claim on any potential marital assets.
Circumstances that include undue pressure can include: signing an hour before the marriage, executing the agreement on the night of the rehearsal dinner or in exchange for receiving an engagement ring. These circumstances may provide an argument that the execution of the premarital agreement was not done because of a knowing decision to give up rights, but rather was based upon a threat or undue pressure which would not have given the releasing party the opportunity to consult with counsel before signing.
The best advice with prenuptial agreements is to find your own lawyer, take accurate inventory of your assets, and make sure you are willingly signing on the dotted line.