Category: conflict of interest

When is a Prenuptial Agreement Enforceable?

When is a Prenuptial Agreement Enforceable?

For years prenuptial agreements were not enforceable in Kentucky.  That all changed with two Kentucky Supreme Court decisions that were handed down in 1990.  Those decisions held that prenuptial agreements were enforceable subject to appropriate limitations.

In order to be enforceable, a prenuptial agreement must meet several requirements.  First, there must be full disclosure by both parties as to his/her financial status and holdings.  The full disclosure of assets rests primarily on the party who intends to rely on the agreement (i.e. the person with the most assets).  Courts will usually take a reasonable view of this requirement and, where it appears that a spouse was aware of the other party’s assets prior to the marriage, will deem this requirement met.

The agreement must also be freely entered by the parties without fraud, material omission, misrepresentation, duress, or mistake.  The court will usually review the agreement to determine if it is unconscionable both at the time it was executed and at the time it is sought to be enforced.  If the court finds the agreement to be unconscionable, it may modify so much of the agreement as necessary to satisfy the conscionability requirement, but should otherwise give effect to as much of the agreement as possible as long as there was no fraud or duress in its execution.

It is also wise for both parties to be represented by separate counsel during the negotiation and execution of the agreement.  This helps to show that the agreement was entered as an arms length transaction and further combat claims of fraud or duress.

Duress is a complicated issue that the court will look at based on the totality of the circumstances surrounding its execution.  As a practical matter, the agreement should be signed as far in advance of the wedding day as possible.  Courts have been concerned where agreements are presented to would-be spouses on the eve of a wedding when the church is booked, the guests are arriving, and the possible embarrassment of being “left at the altar” looms large.

Once the agreement is executed and the marriage is solemnized, the agreement may be revoked by the parties.  This may be done by physically destroying the agreement itself as with any other contract.  A court may also find that the parties through their actions and behaviors have abandoned the agreement.

A prenuptial agreement is a complicated issue that should not be taken lightly.  If you choose to enter a prenuptial agreement, be sure you understand all of its provisions and a very particular about the method in which it is executed.

Photo courtesy of Jim Hammer

A Great Lawyer Knows the Judge

A Great Lawyer Knows the Judge

No, I do not mean that a great lawyer is also the judge’s best friend.  Obviously, if a judge and lawyer who appears before him/her have a close relationship, it creates a conflict of interest that would prohibit the judge from hearing that lawyer’s cases.  The same would be true if there was a high level of personal animosity between the judge and a lawyer.  I recently heard the story of a lawyer who was divorcing his wife, who was a judge.  This lawyer was actually bombarded with calls offering to pay him for the privilege of representing him in the divorce so that his future-ex-wife-the judge would have to recuse herself from all of their cases as well.

In a family law case, it is often vitally important that the attorney you choose is able to accurately predict how the judge assigned to your specific case may rule based on the facts of your case.  I routinely practice in front of approximately nineteen different judges across numerous counties in two states.  Each of those judges have different viewpoints, attitudes, and ideas about what is equitable or in the best interests of children.  There are some judges that regularly award equal timesharing while other judges are opposed to it and would never award it absent an agreement of the parties.  One judge is very generous in awarding maintenance while the judge in an adjacent county almost never awards maintenance.

Having an attorney who can anticipate how a judge may rule in your case can shape not only how your case is prepared for trial, but also possible settlement.  If the opposing party is making demands at a settlement conference that your attorney knows the judge is likely never to award at trial regardless of the evidence, it will inform your negotiation strategy.  Conversely, if your attorney is unable to predict the judge’s actions, you may wind up giving up more than necessary which could negatively affect your financial future.

During your initial consultation your attorney should be able to give you an idea of what you can expect from the judge who may be assigned to your case.  Keep in mind, some judges are easier to predict than others, but the attorney can discuss that issue as well.  If the attorney with whom you are meeting is unable or unwilling anticipate possible outcomes of your case based on different facts and variables, it might be a sign you need to hire a new lawyer.  Who you hire can make a difference.

Photo courtesy of Mike Licht