Prenups and weddings don’t mix. In my professional experience, asking your fiance to sign a premarital agreement is never comfortable, but it is an especially bad idea the week of the wedding. By the time the family comes to town for the big event, the premarital agreement should be at least weeks old, if not months.
Recently I’ve had a couple of different experiences involving last-minute prenuptial agreements. Several years ago a woman came in to the office with a draft of a premarital agreement her fiance was asking her to sign. Her wedding was only three days away. Her family was already in town from out of the country, and the final preparations were in process. I carefully reviewed the premarital agreement with her and found it was terribly one-sided in favor of her soon-to-be husband. If they ever divorced, she would be left with virtually nothing. I advised her about how the agreement would be devastating to her if there were ever a divorce, and I told her that she should not sign the agreement. I put my advice in a letter to her and had her sign for her receipt of the letter. Unfortunately, she also signed the prenuptial agreement.
A few weeks ago, the same client came back to my office. Her marriage so far seems strong. She loves her husband and she says he loves her. But she wonders. What if her husband decides to divorce her? What will she do? She is over 50 years old now and has been out of the work force for several years. She has no assets that are truly her own. If her husband decides to divorce her, will the prenuptial agreement hold up? If the divorce court enforces the agreement, how will she support herself? How will she survive?
Sadly for my client, the agreement is probably enforceable. Being asked to sign a premarital agreement shortly before a wedding, while awkward and unpleasant, does not normally constitute the kind of duress that would justify unwinding the agreement, assuming other statutory requirements are met. See A.R.S. Sec. 25-202. This is especially true when each party to the agreement had counsel or at least the opportunity to consult with counsel before signing. My client was not “forced” to sign the prenuptial agreement. She had legal advice before signing, and she voluntarily put pen to paper. She was free to not sign the agreement and accept the consequences of that decision.
What would have been the consequences of refusing to sign? Of course we can only speculate. Perhaps the husband would have presented her a modified agreement that would have been more favorable to her, that would have provided better for her financially in the event of a divorce. Perhaps the husband would have dropped his request that she sign a prenuptial agreement altogether. Or her greatest fear could have come true–that the wedding would be cancelled and she would be terribly embarrassed. My client’s desire to avoid a possible cancellation of her wedding ultimately overcame her misgivings about the draft premarital agreement, and she signed so that her wedding would proceed as planned.
Last week, a different client made a different decision. The situation was virtually identical. The would-be groom presented the would-be bride with a draft prenuptial agreement just three days before the wedding. Again, the draft agreement was extremely unfavorable to her while protecting all his assets and all his future income from any potential claims she might have under Arizona community property or spousal maintenance statutes in an eventual divorce. I advised her in writing of all the pitfalls of the agreement as written and instructed her not to sign it. She acknowledged my advice in writing, and the last thing she said to me was that she was not going to sign the agreement.
I have not yet heard from this second client as to how her fiance reacted when she told him she wouldn’t sign, but I was pleased that she recognized she had a choice and that she was willing to accept whatever consequences accompanied her decision to say “no.” The broader-application life lessons to be learned from this client’s decision to say “no” even when it would have been easier to say “yes” are profound but beyond the scope of this blog.
For a person who wants his fiance to sign a premarital agreement, the best practice is to present her and her counsel with the first draft long before the wedding day — months before if possible. A couple who negotiate, revise and sign their prenuptial agreement long before their wedding can then relax and focus on their relationship rather than on their possible future divorce. But for the person who is presented with a prenuptial agreement just days before the wedding, remember, it is still a choice, and the answer can be “no.”
Copyright © 2012 by Scoresby Family Law – J. Kyle Scoresby, P.C. All rights reserved.
