Numerous issues have been raised recently in the martial dissolution between Dixie Chicks lead singer Natalie Maines and actor Adrian Pasdar. The trades report Pasdar “does not recall the events related to the drafting and negotiation” of the parties’ agreement. Pasdar is also challenging his “agreement” to waive spousal support.
A pre-marital agreement, if properly drafted, has the benefit of defining a property settlement in the event a soon to be married couples’ marriage ends in divorce. If prepared in accordance with legal guidelines, pre-marital property agreements are enforceable. The question of defining future spousal support rights is more complicated and raises significant challenges.
Jurisdictions differ about what is necessary for a pre-marital property agreement to be enforceable, but certain basic elements are common:
- Was there a complete and accurate disclosure of the party’s assets and liabilities?
- Did each party have enough time to investigate, such that they understood the parameters of the agreement?
- Were the parties afforded the opportunity to retain legal counsel and forensic accountants?
- Is the agreement clear in its definition of the rights and obligations of the parties?
Often, one party brings significantly more wealth into the marriage than the other. In this instance it’s important that the less advantaged party be given financial resources to complete his or her investigation as a prerequisite to signing an agreement impacting his or her future rights.
On occasion the idea of forming a pre-marital agreement arises shortly before the planned marriage, which raises a question whether the agreement is signed under duress. Common sense tells us not to put a party in this situation.
Sometimes the less advantaged party refuses to retain legal counsel and is prepared to sign an agreement without the advice of counsel. This scenario creates risk about the enforceability of the agreement even with recitals that the party was encouraged to retain counsel and the advantaged party offered to pay for the disadvantaged party’s counsel.
To guard against some of the risks outlined in this article, it is often suggested that the signing of the agreement be videotaped and that counsel inquire and confirm that the disadvantaged spouse’s consent was informed, obtained without duress, and that there has been sufficient time to consider the terms of the agreement. Also, it is important that each party is not under any medication which would impact his or her ability to think clearly and that each party understands the terms of the agreement. A videotape would have been helpful in the Maines case; perhaps the subject of a new country song such as: “My fiancée did not tape our vows but taped our PMC (pre-marital contract).”
The enforceability of a prospective contractual waiver of spousal support creates major challenges depending on the jurisdiction of the divorce. Of course, informed consent must be established, but what remains to be determined when a contractual waiver of support is at issue is whether the waiver was unconscionable at the time the agreement was signed. In some jurisdictions, the test is two-fold; was the waiver fair when the parties signed the agreement and is the waiver unconscionable at the time of the divorce? For example, the waiver may have been fair at the time of the agreement, but after a long marriage health concerns may make the waiver unfair given the facts and circumstances presented to the Court.
Robert Eisfelder, founding partner of boutique law firm Robert W. Eisfelder PC, has been practicing family law in Los Angeles for over 40 years. He regularly handles complex family disputes involving significant estates, as well as matters involving significant support, custody or division of property.