Lest family law attorneys think that physicians have cornered the market on the abiding principle embedded in the Hippocratic Oath – “first, do no harm” – counsel representing a betrothed in prenuptial agreements does, or should, operate by the same overarching ethical maxim.

High Stakes / Multiple Interests

As a practical matter, what does “do no harm” mean?

Family law attorneys are engaged to advise clients at a highly vulnerable, emotionally-charged stage of life. In addition to negotiating with counsel for the soon-to-be spouse, they must also contend with a Greek chorus of unseen but powerful forces – often in the form of parents and in-laws – who have a vested interest in protecting their stake in the new marriage.

A Hobson’s Choice

As surely as winter follows fall and spring follows winter, come summer, family law attorneys will be flooded with inquiries from betrothed clients. By and large, these conversations go something like this:

A typical prenup Caller phones on June 5^th: “I have been referred to you for help with my prenup. Do you have availability?”

If it seems as though this is a far-fetched scenario, over the years, long-time domestic relations practitioners have noticed a worrisome trend whereby this very scenario is becoming the norm. Whereas before many family law attorneys would refuse to represent prenuptial agreement clients unless the runway to the wedding date is at least four months away, more and more of us feel compelled to act like first responders and jump headlong into the matrimonial fray. Why a Hobson’s choice? Because the inherent dilemma for the client (not to mention the practitioner) can be reduced to a situational paradox: a free choice can actually be regarded as no choice at all.

The Conditional Engagement

While it is a disquieting way to begin the attorney-client relationship, many family law attorneys staunchly believe that it is essential to be radically transparent and upfront with clients from the get-go. Once the traditional engagement letter has been signed, the real work begins. Early enough, it may well become apparent to the attorney that your lesser-money client is willing to accept zero although s/he is marrying a multimillionaire: in the absence of a prenuptial agreement, once your client utters the words “I do,” they would be entitled by operation-of-law to a host of benefits and protections they are leaving by the wayside in the event the marriage ends by divorce (or the wealthier spouse predeceases your client).

Attorneys would do well to clarify from the start that their services and advice are conditional. While not all advice will be taken – perhaps because of an imposed deadline that makes full consideration of advice difficult, or because the 150 wedding invitations have been sent out – clients must tangibly acknowledge their decision to proceed with the execution of the agreement in spite of warnings. To this end, the wise practitioner should insist that clients sign a document (notarized and in duplicate!) that spells out all efforts made by counsel to advise the client of the prenuptial agreement’s pitfalls, detailing each instance in which the client declined the practitioner’s precautionary efforts and identifying in minute detail which provisions are decidedly not in the client’s best interests.

Sticking with medical metaphors, this proactive measure is the legal equivalent of discharging oneself from the hospital “AMA” (against medical advice), since the client is affirmatively opting to enter into the prenuptial agreement “against legal advice.”

The key takeaway is that attorneys and clients alike should be aware that the mere fact that the prenuptial agreement is being executed in close proximity to the wedding date can render the document vulnerable.

Review

At every turn, attorneys must persuade the client to invest the necessary time to review, alongside counsel, each and every page of the document, line by line. While the client may be overwhelmed at the thought of having to methodically review a forty-page document, it is imperative that attorneys continuously impress upon the client the significance of the document that will impact them for the rest of their life (and perhaps even at death).

Relevant Statutes

In a number of states, including Massachusetts, it may be routine for prenuptial agreements to include or reference state divorce and death statutes, but that is no guarantee that a client will pay even scant attention to a review of such pertinent laws – even at their attorney’s urging.

Among the cornerstone criteria of prenuptial agreements is that they are entered into voluntarily, with full and fair financial disclosure and signed free of coercion and duress. Many states are guided by the Uniform Premarital Agreement Act (UPAA)(1983), which attempts to promulgate a nationally consistent and standardized framework for the creation and enforcement of prenuptial agreements. Massachusetts, however, relies heavily on the DeMatteo test (and other landmark cases) to determine the enforceability of prenuptial agreements.¹

Time pressures have made the voluntary requirement more challenging to adjudicate. California has added a seven-day waiting rule to their UPAA codes, and Minnesota has recently followed suit with their own seven-day rule. In Massachusetts, short timelines are not necessarily an indication of duress. But, even so, given the complexity of these documents, the measure of what is voluntary is not limited to time, but whether both parties have independent counsel before entering into the agreement.²

Conclusion:

Family law practitioners must not be cavalier about their fiduciary duties as we enter into engagements with prospective prenuptial agreement clients. We must be conscious of the enforceability of these documents due to potential claims of signing under coercion or duress by mere virtue of the fact that the execution of the agreement and the negotiations that preceded the signing were in such close proximity to the wedding date. (And, speaking of negotiations, it is advisable to keep all copies of the negotiated drafts in the file so that, down the road, if a prenuptial agreement is challenged, the multiple and heavily-edited drafts can serve as evidence to offset the risk of invalidating claims such as undue pressure, duress, coercion, or inadequate time.) And, as something more than an afterthought, we also should be concerned about potential malpractice suits that could come home to roost in the future because, after all, when attorneys do step in like first responders to render aid in these cases, they need to protect themselves as well as their clients.

In spite of all the challenges short timelines present for family law practitioners in these cases, for most of us, the overriding concern about representing the future spouse under these highly-charged and high-stakes circumstances is contravening the hallmark principle: “first, do no harm.” While we can bring creative new ideas to bear as to how to level-set our clients’ needs and expectations, in the end, nothing can take the place of sound, traditional, fundamental family law principles and practices.

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1. DeMatteo v. DeMatteo affirmed a two-stage analysis: the agreement must be fair and reasonable at the time of execution, and the agreement must be conscionable at the time of enforcement. The opportunity to consult independent legal counsel and understand spousal rights waived is an essential element of that first stage. DeMatteo v DeMatteo, 436 Mass. 18 (2002).

2. For example, in Biliouris v. Biliouris,  the court upheld a prenuptial agreement signed just three days before the wedding (despite the woman being pregnant at the time, despite taking due notice of the testimony that the wedding would not occur without her signature, and despite the court’s acknowledgment that her independent legal counsel had advised her not to sign). While many would objectively consider these factors sufficient to prove coercion and duress, the Court deemed that the agreement was valid and enforceable. Biliouris v. Biliouris, 67 Mass. App. Ct. 149, 852 N.E.2d 687 (2006).