At Wick Law, I understand the finer points of drafting prenuptial agreements capable of withstanding attack when the marriage goes awry. Having briefed, argued, and won a multi-million-dollar dispute involving a prenuptial agreement involving novel questions of full disclosure and consent without fraud and coercion, I caution anyone seeking a prenuptial agreement to understand clearly the laws regarding full disclosure and consent without fraud and coercion.
This case involved a prenup that suffered from many ailments due to poor drafting and, on top of that, presented further problems for Husband because it was signed the very morning of the wedding!
At trial, the Wife predictably testified that she signed the document under duress and, further, she was coerced. Additionally, she claimed that despite having hired, at the last minute, separate counsel, she hadn’t read the document and certainly didn’t understand it, especially when it came to the values of the Husband’s property. The prenuptial agreement was found to be valid and enforceable.
The Wife was 41 years old and Husband was 43 years old at the time of their marriage. This was a second marriage for both parties. Due to a highly litigious previous divorce, Husband frequently emphasized his insistence upon a prenuptial agreement as a prerequisite to any potential future marriage. Wife, for her part, seems to largely ignore Husband’s insistence.
The parties were engaged for approximately six months and during the period of engagement, the parties had several more conversations wherein Husband continued to emphasize his insistence on the signing a prenuptial agreement prior to their marriage, and Wife, apparently, continued to ignore him.
They planned the wedding and bought a house. Following that, and approximately three months before the wedding Husband had a prenuptial agreement prepared. Husband retained a well-respected law firm to prepare the prenuptial agreement. Despite this, the pre-nuptial agreement failed to attribute any value, whatsoever, to the Husband’s several real estate holdings. No appraisals of Husband’s real estate assets were performed.
At trial, Wife testified that she read the agreement when it was first presented to her, but she did not intend to sign it. Astoundingly, she didn’t mention to Husband that she never had any intention of signing! Nevertheless, Husband was persistent and presented the agreement to her weekly. Unbelievably, Wife never told Husband she did not intend to sign!
Finally, and crucial to the ultimate success of Husband’s case in chief, three days before the wedding Wife met with an attorney, who reviewed the prenuptial agreement and requested several revisions. Nearly all were swiftly rejected by Husband under the theory “what’s mine in mine and what’s hers and hers.”
Just under the wire, the prenuptial agreement was signed the morning of the wedding in the kitchen of the parties’ home. In order to overcome Plaintiff’s claim that the prenup was invalid due to her duress and coercion to sign, we had to call the witness to the prenup as a witness at trial to testify that Wife, at the time, did not seem the least bit upset or surprised.
Wife’s second attempt at invalidating the prenuptial agreement was tough to overcome as well. The prenuptial agreement failed to attribute any values, whatsoever, to Husbands many real estate holdings and ventures.
How was Wife to possess any understanding of the document she was signing, if she didn’t know the values of the assets she ultimately gave up?
The Supreme Court of Ohio identified a three-part test which states that prenups are valid and enforceable if three basic conditions are met:
- If the Husband and Wife entered into the prenup freely without fraud, duress, coercion or overreaching;
- If there was a full disclosure, or full knowledge, and understanding, of the nature, value and extent of the prospective spouse’s property; and,
- If the terms do not promote or encourage divorce or profiteering by divorce.
1. Separate Representation
In this case, the opportunity of the Wife to seek counsel before signing the prenuptial agreement was a significant factor in the trial court’s decision to find the prenup valid and enforceable. Ohio case law that states even if a prenup is signed shortly (i.e. “hours”) before the wedding, the prenup can still valid if it was not a surprise to the challenging party that the proponent spouse wanted the agreement signed.
2. Exhibits are Necessary
Attach an exhibit for Wife and an Exhibit for Husband listing each party’s respective assets and the corresponding values. Obtain appraisals if necessary! Here, the Husband didn’t feel appraisals were necessary, and ultimately, he had endure the stress of uncertainty as to whether his prenup would be upheld, and he had to pay attorneys to litigate the issue.
Avoid last-minute signing because it implies duress and lack of full understanding.