Prenuptial, Postnuptial and Prenuptial, Postnuptial and Cohabitation - PowerPoint PPT Presentation

Presenting a live 90 ‐ minute webinar with interactive Q&A Prenuptial, Postnuptial and Prenuptial, Postnuptial and Cohabitation Agreements Strategies to Craft Enforceable Provisions and Attack or Defend the Agreement THURSDAY, SEPTEMBER 22, 2011 1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific T d Today’s faculty features: ’ f l f Christopher C. Melcher, Partner, Walzer & Melcher , Woodland Hills, Calif. Peter M. Walzer, Partner, Walzer & Melcher , Woodland Hills, Calif. Richard G. Kent, Partner, Meyers Breiner & Kent , Fairfield, Conn. The audio portion of the conference may be accessed via the telephone or by using your computer's speakers. Please refer to the instructions emailed to registrants for additional information. If you have any questions, please contact Customer Service at 1-800-926-7926 ext. 10 .

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Thursday, September 22, 2011 1:00 pm – 2:30 pm EDT p p Strafford Publications P P RENUPTIAL , P OSTNUPTIAL AND P C OHABITATION A GREEMENTS 5

P RESENTERS  Richard G. Kent Meyers Breiner & Kent Fairfield, Connecticut 203-255-9410  Peter M. Walzer &  Christopher C. Melcher Walzer & Melcher LLP Walzer & Melcher LLP Woodland Hills, California 818-591-3700 818 591 3700 6

O VERVIEW  Differences between premarital agreements, p g , postmarital agreements, and cohabitation agreements  How to discuss and negotiate these agreements H t di d ti t th t  Structuring the agreement  Choice/conflict of laws for multistate or international  Choice/conflict of laws for multistate or international couples  Getting retained and paid 7

W HO N EEDS A P RENUP ?  A party who wants to protect separate assets, such p y p p as family wealth from disputes on death or divorce.  A party who has a professional practice or other service business and wants to avoid or limit a service business, and wants to avoid or limit a community interest.  The other party has substantial debt, or a support obligation from a prior marriage obligation from a prior marriage. 8

B ENEFITS OF A P RENUP  Promotes communication about finances and expectations of each party before marriage.  Provides certainty as to their rights and obligations on divorce on divorce.  May increase trust about the other’s intentions.  May reduce chance of litigation on divorce.  May reduce chance of litigation on divorce. 9

W HAT A P RENUP C AN D O  Keep premarital property off limits p p p p y  Fundamentally change the default rules re community property or equitable distribution.  Limit or waive spousal support/alimony.  Specify rights on death and to life insurance. 10

R ISKS OF P ROPOSING O NE  Neither party appreciates an attorney’s intrusion p y pp y into their idyllic expectations of love and marriage.  The subjects of death and divorce are the antithesis of expectations of love and marriage of expectations of love and marriage.  Agreements demonstrate a lack of trust.  Agreements dampen romance. 11

S OCIETAL V IEWS  Premarital agreements place emphasis on the g p p individual over the couple.  May hurt women more than men.  The wealthy may have an advantage over the less wealthy. 12

L EGAL E NVIRONMENT  Marriage is a highly regulated institution, so there g g y g , are limits on freedom of contract with respect to marital agreements. 13

14 M ARITAL A GREEMENT H OW TO D ISCUSS A  ??

15 3 K EY E LEMENTS TO A P RENUP  Independent Counsel  Disclosure  Timing

16  How far in advance must the agreement be g presented? T IMING

D ISCLOSURES  What must be disclosed?  What must be disclosed?  Can the right to disclosure be waived?  Attach disclosures to the agreement so there is no question what was disclosed.  The disclosure should give meaningful information about the party’s income assets and obligations the party s income, assets, and obligations.  Serve disclosures while agreement is being negotiated with sufficient time for review. 17

I NDEPENDENT C OUNSEL  Does the attorney have to certify the agreement? y y g  Is an attorney certification a waiver of the attorney- client privilege?  Is the attorney “independent” if paid by the other party?  Can a party waive the right to counsel?  Can a party waive the right to counsel?  What is required to show that an unrepresented party understood the prenup? 18

G ENERAL L EGAL R EQUIREMENTS  Must be in writing and signed by both parties. g g y p  Statute of frauds exception?  Consideration not required (but is a good idea).  May agree on any matter regarding rights on death or divorce, not in violation of public policy. 19

P UBLIC P OLICY L IMITS  Child support. pp  Child custody.  Religious upbringing of children.  Support of a spouse during marriage.  Penalties for spouse not performing marital duties.  Unfaithfulness.  Immigration marriage?  Interspousal fiduciary duty?  Interspousal fiduciary duty? 20

B UILDING A S TRONG A GREEMENT  Avoid last-minute agreements. g  Allow for changes.  Do not include provisions which violate public policy.  Follow the law in your state (e.g., the Uniform Premarital Agreement Act) Premarital Agreement Act). 21

S TRUCTURING THE D EAL  Create a real bargain. g  Is there incentive to challenge the agreement because there’s nothing to lose?  No contest clause?  Importance of recitals. 22

P ROPERTY I SSUES  No property vs. limited property rights during p p y p p y g g marriage.  Lump sum payment?  Payment for each year of marriage?  Waiver of property rights in loan proceeds.  Waiver of rights resulting from efforts of spouse Wai er of rights res lting from efforts of spo se during marriage. 23

D EATH  Clients often forget that the property provisions g p p y p don’t just apply on divorce – they also apply equally at death.  Does the client really intend to disinherit the other D th li t ll i t d t di i h it th th spouse if the client dies while the marriage is intact?  Life insurance can be provided as a means of security. 24

R ETIREMENT B ENEFITS  Federal law controls  Need to have waiver of those rights executed after marriage. 25

S POUSAL S UPPORT /A LIMONY W AIVERS OR L IMITATIONS  Waiver vs. limitation?  Will the waiver be tested at time of execution of the agreement or at time of enforcement?  There may be a greater protection under the law for spousal support rights than marital property rights.  Include severability clause  Include severability clause. 26

A LIMONY C HOICES  Allow court to set amount and duration, subject to , j provisions in agreement.  Limit duration of support payable based on length of marriage? f i ?  Cap the amount which may be ordered by the court? court?  Requiring a minimum amount is risky because there may be no ability to pay. 27

C HOICE OF L AW  Be aware of interstate and international law issues when parties are living in separate places or where they contemplate moving.  Complex area. Consult with local counsel as to C l C lt ith l l l t whether the agreement would be enforceable in that jurisdiction. 28

E NFORCEMENT IN O THER J URISDICTIONS  Every state and country different. y y  Some countries do not honor premarital agreements.  Most countries have premarital regimes.  Advise client in writing to client you can only give advice on the law of your state advice on the law of your state. 29