A certain story about ultra-rich and famous movie director Steven Spielberg and his former wife Amy Irving is sometimes rehashed in the media to drive home a central point about contracts.
That point: Make sure they’re enforceable.
In the case of Spielberg and Irving, the couple reportedly executed a prenuptial agreement focused on their finances that was written on a napkin, without, quite obviously, both parties having experienced attorneys on hand to provide counsel and representation.
Long story made short: A court refused to honor the contract, with Irving’s windfall from the agreement’s invalidity being $100 million.
Every divorce attorney with experience negotiating, drafting and helping couples execute marital contracts knows of instances where such agreements failed owing to deficiencies brought about by bad intent, simple error or other considerations.
The mantra regarding a prenuptial agreement or postnuptial contract is this: Think it out, have experienced legal counsel on board and get it right.
A number of things can certainly make it wrong. As noted, and foremost, forgoing representation from a proven family law attorney can turn a marital contract upside down and induce a judicial frown in a hurry.
So, too, can evidence that such an agreement was not entered into voluntarily, with the time necessary for due reflection on its particulars prior to execution. A prenup signed hours before a marriage that facially looks to be lopsided in its favoring of one of the parties and implies duress on the part of the other is likely to be about as enforceable as the contents were on Spielberg’s napkin.
Other factors can weigh in materially as well. Were both parties honest and entirely forthcoming about disclosing assets and debts? Is any language in the agreement so loose and sloppy that it defies understanding and enforcement? Would any of the subject matter be deemed unconscionable — e.g., you stay home and clean the house for 15 hours a day, every day — and against public policy?
The bottom line: Legal contracts of any weight need the practiced eye and input of an experienced attorney. Marital agreements are no exception.
Source: Huffington Post, “10 common prenup pitfalls,” David Centeno, Nov. 4, 2013