Cohabitation agreements are a great way for couples to define each person’s rights as well as their responsibilities if the relationship ever comes to an end. Cohabitation agreements are somewhat similar to prenuptial agreements, except that no nuptials will actually take place.
Premarital and cohabitation agreements are apples and oranges. If you marry your partner when you previously had a cohabitation agreement, it will not be in effect after the marriage. In contrast, the whole purpose of the pre-nup is to determine what happens after marriage, in case the couple divorces. All states enforce at least some pre-nups and almost all states recognize cohabitation agreements.
When dividing assets, income, and debt of parties in a prenuptial agreement, parties have a large amount of flexibility. While the UPAA limits in the type of agreements to which it is applicable, it does not significantly limit what can be covered in a premarital agreement. However, courts may invalidate an agreement for unfairness or lack of full disclosure of assets. Some examples include the following cases:
· Wife who executed prenuptial agreement intelligently waived her right to any of husband’s income and real or personal property, and any claim to alimony, even though neither party disclosed their income in the agreement; parties dated for several years before marriage, became knowledgeable as to each other’s standard of living and spending habits, and thereby acquired independent knowledge of each other’s financial circumstances, wife was an attorney and was represented by an attorney during negotiation of the agreement, wife’s attorney drafted the original agreement, and agreement was intensely negotiated and went through at least seven drafts before finally being executed.
· Premarital contract was invalid and would not be enforced where agreement itself contained no information about husband’s finances; facts that parties resided together before marriage, wife had real-estate license, wife had previously been married and had seen attorney in her first divorce, wife had visited one property owned by husband, and wife had worked at commercial property owned by husband were insufficient to establish degree of required disclosure of assets.
· Husband’s failure to disclose his income when he and wife executed prenuptial agreement addressing alimony issues did not constitute nondisclosure of material facts so as to render agreement unenforceable, as financial statement that husband provided to wife revealed him to be a wealthy individual with significant income-producing assets, and wife had lived with him for four years before prenuptial agreement was entered.
· Husband’s alleged failure to fully disclose his assets at the time husband and wife entered into a prenuptial agreement did not render the agreement void, in divorce proceeding; when husband and wife entered into the agreement they were both young professionals, they were both just starting their careers, and they had combined assets of less than $20,000, and wife did not claim that husband’s alleged failure to disclose his assets had any effect on her decision to sign the prenuptial agreement.
· Prenuptial agreement that provided that each party retained ownership of all property owned as of the date of the marriage was valid and enforceable, although agreement did not disclose each asset it described or nature of husband’s ownership interest in them; agreement contained a complete list of husband’s assets, proposed agreement was presented to wife more than one week prior to marriage, wife read the agreement and insisted on amendments to it that permitted her to share in the ownership, and husband insisted that she review the amended agreement with her own lawyer which she did.
Debts are often considered property in a prenuptial agreement. If there’s no prenuptial agreement, creditors may be able to access marital or community property to satisfy the debts of just one spouse. However, parties may include terms within their prenuptial agreement to limit your liability for each other’s debts.
· The court held that “the agreement also provided that all property acquired by either party after the date of the marriage and prior to the commencement of an action for divorce is marital property, and that any debts acquired during the marriage are joint obligations of the parties.”
· The trial court correctly determined that where the corporate entities in question had been excluded as marital assets under the prenuptial agreement, any debt incurred by such entities must similarly be deemed non-marital in nature, and that the husband’s personal guaranty of such debt during the marriage did not otherwise convert it into marital debt.
Premarital agreements can include provisions that detail what financial responsibilities each party has during the marriage. Prenuptial agreements are designed to address financially based issues. Some common items included in prenuptial agreements include:
· Separate business;
· Income, deductions, and claims for filing your tax returns;
· Management of household bills and expenses;
· Management of joint bank accounts, if any;
· Arrangement regarding investing in certain purchases or project like a house or a business;
· Management of credit card spending and payments;
· Savings contributions; and
· Arranging putting one party or the other through school.
There have been a handful of prenuptial agreements that have allowed parties to regulate the ongoing marriage. One such agreement, drawn up by a New Mexico couple, has received national attention. The prenuptial that Rex and Teresa LeGalley created runs sixteen single-spaced pages and specifies minute details of their daily lives, such as how much money per week they get for expenses ($70), what kind of gas they will buy (Chevron unleaded), and how often they will engage in “healthy sex” (three to five times per week). Nevertheless, courts generally will not enforce provisions of prenuptials that regulate conditions of the ongoing marriage, citing the “well-established rule that it is improper for courts to intervene in a married couple’s daily domestic affairs.” Some examples of actual provisions that have been found unenforceable by courts have provided that a treasured snowball collection may be kept in the freezer, that one party must walk the dog, or that a husband has the option to sue for divorce if his wife gains more than fifteen pounds.
An important thing to remember when advising clients and drafting prenuptial agreements it to make sure your client understands the need to keep the agreement up to date. Because of the exceptionally indefinite nature of marriage, it is almost impossible to predict the impact that a prenuptial agreement will have if it does come into play. Personal income may increase or decrease; job skills may be acquired or lost; family obligations may vary in regard to both the other spouse and children; personal expectations may change. Change in the course of marriage is foreseeable, but the specifics of the change are not.
Therefore, agreements should be designed to accommodate the passage of time and changes in status, such as the birth of children, an increase or decrease in wealth or the disability of either party. However, life changes happen down the road that are not able to be anticipated when drafting a prenuptial agreement and your clients need to understand the agreement may become virtually useless if it is not updated.
A sunset clause is a provision within a prenuptial agreement which explicitly states the point in time in which the agreement will be considered no longer valid. It is like an expiration date for the agreement. The idea is that after a certain number of years, the agreement becomes invalid and everything is split according to normal procedures within the court system.
Why include a Sunset Clause in the first place? It is a protection against a short marriage and can be used to avoid the risks of financial fallout that may result from going through the court system. It also shows the hope for the marriage to last forever or at least a certain number of years into the future. Using a sunset clause often offsets all the negative connotations of a premarital agreement and gives the judges more reason to see them through.
There are several ways a prenuptial agreement can be attacked and found invalid. A premarital agreement or marital agreement is unenforceable if a party against whom enforcement is sought proves: (1) the party’s consent to the agreement was involuntary or the result of duress; (2) the party did not have access to independent legal representation under subsection (b); (3) unless the party had independent legal representation at the time the agreement was signed, the agreement did not include a notice of waiver of rights under subsection (c) or an explanation in plain language of the marital rights or obligations being modified or waived by the agreement.
A premarital agreement is effective on marriage. A marital agreement is effective on signing by both parties. A prenuptial agreement executed under duress or with undue influence will not be valid. A common claim of duress is based on an allegation that one party did not have sufficient time to consult with a lawyer and was presented with the agreement within days or hours of the wedding. In a typical case, presentation of an agreement a few weeks in advance of a wedding may be deemed sufficient.
There is significant and quite divergent case law that has developed under the “voluntariness” standard of the Uniform Premarital Agreement Act and related law. As an example, compare the following two cases finding agreements “involuntary” when significantly revised version of premarital agreement was presented three days before the wedding with the following two cases holding agreements presented one or two days before the wedding to be sufficiently enforceable. There are also several other cases to point to on this topic.
· In reversing the trial court and invalidating the premarital agreement, the court noted that timing of agreement is of paramount importance in assessing whether it was voluntary. This particular prenuptial agreement was not voluntarily signed by wife, but was product of duress, considering complexity of husband’s finances, disparity of parties bargaining power, and wife’s lack of knowledge of existence of agreement less than 48 hours before the wedding.
· The presentation of an agreement a very short time before the wedding ceremony will create a presumption of overreaching or coercion if, in contrast to this case, the postponement of the wedding would cause significant hardship, embarrassment or emotional stress.
· Under these circumstances we find it would be unfair, unjust and inequitable to enforce this prenuptial agreement. The timing of the agreement negated any inclination Mrs. Matson may have had to secure independent advice. The first meeting to review a sample agreement took place one week before the wedding; the signing of the final agreement was done the evening before the wedding. Mr. Matson admitted that any hesitation by his future wife would have resulted in at least a delay of the wedding. Obviously, the night before her wedding a bride has concerns that seem more important and immediate than the potential dissolution of her marriage and waiver of her interest in future community property.
A party has access to independent legal representation if: (1) before signing a premarital or marital agreement, the party has a reasonable time to: (a) decide whether to retain a lawyer to provide independent legal representation; and (b) locate a lawyer to provide independent legal representation, obtain the lawyer’s advice, and consider the advice provided; and (2) the other party is represented by a lawyer and the party has the financial ability to retain a lawyer or the other party agrees to pay the reasonable fees and expenses of independent legal representation.
Independent counsel is routinely recommended by the courts when drafting a prenuptial agreement because the parties’ interests are often adverse. Due to the nature of the relationship between the parties involved in a premarital agreement, there may be certain situations in which independent counsel may be especially important such as when one of the future spouses is considerably wealthier than the other, or when only one spouse waives his or her rights to an elective share.
Often one party may have representation and the other party may not. Although this does not appear to present a problem on its face, the problem arises because the unrepresented party may believe that the attorney is an expert in the law and not interested in either party or that the attorney is representing his or her interests as well. Perhaps the best advice an attorney can give to an unrepresented party is to seek representation.
A premarital agreement or marital agreement is unenforceable if a party against whom enforcement is sought proves: (1) the party’s consent to the agreement was involuntary or the result of duress. The party seeking to avoid a premarital agreement may prevail by establishing that the agreement was involuntary, and that evidence of lack of capacity, duress, fraud, and undue influence, as demonstrated by a number of factors uniquely probative of coercion in the premarital context, would be relevant in establishing the involuntariness of the agreement. Adequate legal representation will often be the best evidence that a spouse signed a premarital agreement knowledgeably and voluntarily.
A premarital agreement or marital agreement is unenforceable if a party against whom enforcement is sought proves: (4) before signing the agreement, the party did not receive adequate financial disclosure under subsection (d). A party has adequate financial disclosure under this section if the party: (1) receives a reasonably accurate description and good-faith estimate of value of the property, liabilities, and income of the other party; (2) expressly waives, in a separate signed record, the right to financial disclosure beyond the disclosure provided; or (3) has adequate knowledge or a reasonable basis for having adequate knowledge of the information described in section (1).
It is important to include in the agreement a full disclosure of all assets and liabilities, including the values of each asset. While the Uniform Premarital Agreement Act allows the parties to expressly waiver full disclosure, better practice is to disclose assets in order to preclude an attack on this basis. Furnishing a list of assets and their value has the additional benefit of providing a good record if the agreement is later set aside or revoked by the parties.
A court may refuse to enforce a term of a premarital agreement or marital agreement if, in the context of the agreement taken as a whole: (1) the term was unconscionable at the time of signing; or (2) enforcement of the term would result in substantial hardship for a party because of a material change in circumstances arising after the agreement was signed.
The reference in Subsection (f) to the unconscionability of (or substantial hardship caused by) a term is meant to allow a court to strike particular provisions of the agreement while enforcing the remainder of the agreement– consistent with the normal principles of severability in that state. However, this language is not meant to prevent a court from concluding that the agreement was unconscionable as a whole, and to refuse enforcement to the entire agreement.
The court shall decide a question of unconscionability (or substantial hardship) under subsection (f) as a matter of law. Unconscionability is determined by looking at the standard used in the Uniform Marriage and Divorce Act. The Uniform Marriage and Divorce Act states that in order to determine if an agreement is unconscionable, a court may look to how the agreement affects the economic circumstances of the parties, and the conditions under which the agreement was made.
State laws govern enforcement of prenuptial agreements. Likewise, state law also governs whether the prenuptial agreement is even valid. If enforceability of a prenuptial agreement is called into question in the event of separation, divorce, or death, a trial may result. The purpose of the trial is to allow the judge to weigh evidence presented and credibility of witnesses to enable her to decide whether the prenuptial agreement is to be enforced. Prior to recent years, some states failed to recognize premarital contracts, claiming they were violations of public policy, and therefore null and void. For example, it was not until 1982 that Georgia even recognized prenuptial agreements as valid pre-marriage contracts. Today, most states and their courts recognize the right of competent and consenting adult parties to enter into premarital contracts.
Generally speaking, prenuptial agreements are enforced if they meet these basic requirements:
· The agreement addresses the rights and responsibilities of each party in property of either or both.
· The agreement is in writing and is signed by both parties prior to their marriage.
· The agreement is entered into voluntarily and is not considered unconscionable (defined as overly one-sided, oppressive, and unfair).
· The terms in the agreement addressing the parties’ financial information are adequately disclosed, or the parties knowingly and willingly waived financial disclosure.
· The agreement’s enforcement would not violate all of one party’s marital rights.
· The agreement was signed well before the wedding ceremony to avoid any possible situation of coercion (preferably one to two months prior).
· The agreement is considered fair and does not render either party destitute.
In general, any terms of the agreement can be modified at a later date, just like other contracts. The standards change from state to state but usually, the changes must be in writing and signed by both parties. Unless the entire previous agreement is revoked, the other parts of the agreement will stay in effect. There are even some states which will alter the agreement without either party’s involvement. Any modifications to the agreement will ultimately be held to the same standards for enforcement as the rest of the agreement.
When drafting pre- and postnuptial agreements, there are some general tips to keep in mind. First, draft the agreement as if the divorce has already been filed. Try to think of possible arguments against enforcement of the agreement and combat those in the initial drafting. Second, avoid last minute drafting or drafting an agreement a short amount of time before the wedding. This can lead to rushed and sloppy work as well as the possibility of overlooking an important section. Third, do not agree to represent both parties to the agreement. This can be a way to attack the agreement later on. Fourth, make sure your client has disclosed all assets that are important to them, whether they have economic or sentimental value. This is another way the agreement can be attacked later on. Finally, make sure to document all communication with the client regarding the agreement. Send follow up letters or emails clarifying your discussions. This is a way to protect yourself later on if your client was to claim you did not follow their instructions.
B. Initial Considerations and Pitfalls to be Aware Of
If you’re in a relationship without any concrete plans for marriage, you might consider a cohabitation agreement negotiated and drafted by an experienced lawyer. The following are some of the situations in which it makes sense for unmarried couples to consider a cohabitation agreement to define their rights and responsibilities in the event that the relationship ends:
· Cohabitation with jointly held assets, including bank accounts
· Real estate purchased or held in one person’s name
· The couple is engaged in business together
· One person pays most of the household expenses
· One person is supporting the other through college or graduate school
While an action in partition might be able to address some of these issues, a cohabitation agreement is often the best path. A cohabitation agreement will be interpreted and enforced according to the standard rules of contract law. Just about any arrangements made will be valid, provided they reflect the free and informed agreement of the parties and contain no illegal terms.
Clients will often come to attorneys with a draft of a prenuptial agreement, hoping to cut down on the cost thinking they have already done a majority of the work. What many clients do not realize is that there are several formalities in every state which must be met in order for the agreement to be found legal and valid. Additionally, clients might not realize everything that should be or could be included in the agreement. Your job as an attorney drafting such a document is to not only include all the wishes of the client, but also draft something that will stand up to a challenge legally. This often means balancing the client’s wishes with formalities. Remember to keep in mind the client’s goals as well as the larger goals accomplished by a premarital agreement.
Anyone drafting a prenuptial agreement has a duty to carefully scrutinize any form they are working from to ensure it meets the specific needs of their client. It is also the drafter’s job to check with the specific laws in their specific state. There are various differences in state law concerning prenuptial agreements and these can affect the validity of the agreement you are drafting.
Clients might not always remember to include everything about their financials and might not know everything about their perspective spouse. In this case it is a good idea to ask the client to provide you with the following documents upon commencement of representation:
· Tax returns for last five years;
· Copies of car and boat titles;
· Life insurance and annuity contracts;
· Documents relating to business ownership and value of interest;
· Copies of stocks and bonds;
· 401K, IRA and Retirement Account Statements;
· Recent statements relative to bank accounts;
· Deeds to property owned;
· Divorce papers if married previously;
· Wills and Trusts;
· Powers of attorney; and
· Health Care Power of Attorney or Living Will.
Again, it is the attorney’s responsibility to draft an agreement that is valid. Be sure to document all of your advice to your client in writing. State the conditions under which the agreement was drafted and any recommendations you made that the client rejected. You want to make it easy to defend the document you drafted as well as your own actions as an attorney in the case you or the document are challenged or questioned.
In general, a premarital agreement is a contract between prospective spouses made in contemplation of marriage and to be effective upon marriage. Parties to a premarital agreement may contract with respect to mutual property rights and obligations; rights to acquire, manage, and dispose of property; disposition of property on separation, dissolution, or death; modification or elimination of spousal support; wills and trusts; and death benefits from life insurance policies. As used in a premarital agreement, “property” means an interest, present or future, legal or equitable, vested or contingent, in real or personal property, including income and earnings.
Modern statutory and case law holds that in order for a premarital agreement to be enforceable, the parties must fairly disclose their respective financial status and other material information, the agreement must be voluntarily and freely entered, the division of property in the event of death or divorce must not be unfair, and the terms of the agreement may not otherwise be unconscionable at the time it is entered into or in some jurisdictions, at least as to support obligations, at the time of dissolution. If these and various other criteria are established, and the agreement is not otherwise subject to some invalidating cause, the agreement will be enforced, but if they are lacking the agreement will not be enforced.
Almost all jurisdictions currently require premarital agreements to be in writing. A small number of courts have indicated that an oral premarital agreement might be enforced based on partial performance and at least one jurisdiction has held that a premarital agreement could be amended or rescinded by actions alone. One court, in an unpublished opinion, enforced an oral agreement that a written premarital agreement would become void upon the birth of a child to the couple.
There are some general requirements that the majority of states require in order for a Prenuptial Agreement to be valid. First, a prenuptial agreement should be in writing. Second, a prenuptial agreement must also be signed by both parties. Third, since the parties entering into a prenuptial agreement are entering into a contract, they must have general contractual capacity. The parties must be of legal age and competent to contract. Moreover, there must be sufficient consideration. Although the UPAA provides that an agreement will be enforceable “without consideration,” it will only be effective “upon marriage.” Thus, as under the common law of many states, the marriage is essentially the consideration. A book written specifically for the layperson suggests that a prenuptial agreement contain the following clauses: duration of the contract; division of property; division of income; treatment of debt; specification of support and living expenses; decisions about surnames, birth control, children, housework, domicile, religion, wills and inheritance; a blueprint for the resolution of arguments; and a provision for dissolution of the marriage.
C. Walkthrough of Key Clauses and Drafting Concerns
Living together contracts don’t need to be overly complex or contain legal-sounding language. To the contrary, it’s a better idea to make the agreement in plain language, and include as much or as little detail as the couple feels is necessary.
Here are some items to consider:
· Property accumulated during the relationship – It’s important to define how property acquired during the relationship should be treated. For example, if one person buys something during the relationship, do both parties own 50% of it? Does whoever bought it own it? What if the item is purchased using personal savings?
· Property acquired by gift or inheritance – Generally, people like to keep items received as gifts or by inheritance as separate property. If you and your partner want to do this, you need to write it down so there is no confusion.
· Property from before the relationship – Many people like to keep items received before the relationship began as separate property. If you and your partner want to do this, you need to write it down so there is no confusion.
· Expenses – Make sure you cover how expenses will be paid. This can be a huge area of disagreement, so it’s important to write down the expectations. For example, you might split them 50/50, make it proportional to income, or just pool your resources into one account and pay jointly.
· Separation or death – Although you may not want to consider it, it’s important to define what happens when the relationship ends. It’s important not to leave the status of property and money in limbo if a couple splits up.
· Dispute resolution – In the case that a dispute arises, couples may want to define how it should be resolved. A typical example would include using mediation or arbitration before taking the matter to court.
The majority of states now recognizes cohabitation agreements, though many require that the agreement be in writing and be signed by the parties. The legal requirements for valid cohabitation contracts tend to parallel the requirements of some other contracts, because they’re essentially just another type of contract. Only a small number of recent cases have held that contracts between unmarried cohabitants are unenforceable.
· Distribution of property in case of death or breakup
· Financial support during the relationship or after
· Payment of debts from before and during the relationship
· Division of the principal residence upon death of one partners or breakup
· Creation of a joint tenants with rights of survivorship allowing the other partner to own the shared home if the other dies or adding both partners’ names to the deed
· Decide on support, custody, or visitation rights for minor children, although the court can disagree with this and decide differently based on what’s in the best interests of the children
· Determination of health care insurance responsibility
D. Estate Planning Considerations and Relevant Provisions
A will is a legal document that details what an individual would like done with his or her property and assets after death. If you have property you wish your cohabitant to receive after your death, you need to describe the property in your will and indicate your wish. Otherwise, if you don’t have a will to detail your wishes, your property will pass according to what are called intestate succession laws.
In most states, intestate succession statutes automatically distribute your property to your closest family members, i.e. your spouse, children, parents, etc. Without a will, your cohabitant won’t receive any of your estate unless he or she is successful in arguing that you had a financial or property-sharing arrangement. Such claims are often difficult to prove, particularly with the lack of any formal documents. Drafting a will is generally the best way to ensure your property is passed to whom you wish.
However, if you and your cohabitant are joint owners of the property, you may wish to consider a joint tenancy with a right of survivorship instead of a will. Joint tenancies give the cohabitants the ability to share the rights and responsibilities associated with the property during their lifetimes. Then, upon the death of one joint tenant, title to the property automatically passes to the other, without the need to go through the formal probate process a will requires. There are other benefits to a joint tenancy, such as tax savings, documentation of commitment, and the sharing of debt.
When you create a “power of attorney,” you have authorized another person to make decisions on your behalf, particularly decisions that may have a legal effect. A power of attorney is “durable” when it only becomes effective after you have become legally incompetent, i.e. unable to manage you own affairs. Durable powers of attorney are also called “living wills.”
There are generally two types of durable power of attorney, but this can vary depending upon the state you reside in. The first type, called the durable financial power of attorney, applies only to financial decisions. If you grant someone the durable financial power of attorney over your affairs, he or she will be able to manage your finances when you become unable, and must always act in your best interests. Second, there is a durable power of attorney for health care. While state regulations vary, the durable power of attorney for health care, otherwise known as a “medical directive,” allows you to name someone to direct your medical care if you become incapacitated.
When creating a medical directive, you make what is called a health care declaration, or medical directive. The health care declaration sets out how you should be cared for in an emergency or if you are incapacitated. Specifically, you can direct which treatments you want to receive and which you do not. Life-prolonging treatments like resuscitation are often addressed in a medical directive, as are directions regarding quality of life and end of life treatments.
Once you have granted a durable power of attorney for medical care, the person you nominated to make decisions on your behalf will be able to:
· Make medical decisions on your behalf, if you have not already made specific instructions regarding that decision in your medical directive
· Enforce your health care decisions in court, if necessary
· Hire and fire doctors and medical workers involved in your treatment
· Have access to your medical records
If you would like your unmarried partner to manage your affairs should you become unable to manage them yourself, you should create both the durable power of attorney for health care and the durable financial power of attorney. If you have not completed these documents, financial and health care decision-making will typically pass to a member of your family when you become incapacitated.
E. Enforceability of Cohabitation Agreements
The validity of cohabitation agreements was the subject of the well-publicized Marvin case in the California Supreme Court. In that case, the court held that an express or implied agreement between a couple living together outside wedlock to share income in consideration of (or exchange for) companionship could be legally enforceable. However, Ms. Marvin wasn’t awarded “palimony” because the court found that Mr. Marvin hadn’t agreed to share his income with her.
When an agreement expressly includes consideration of sexual services provided by one of the parties, a court is more likely to find the contract unenforceable. For example, if one partner agrees to share his or her income in return for the other partner’s love and companionship, a court may find that the contract implicates “meretricious” (apparently attractive, but actually of little value or relating to a prostitute) sexual activity. The court may refuse to enforce the contract. Proving an oral agreement or an implied contract between unmarried cohabitants is also difficult, and several courts have refused to recognize such an agreement due to lack of proof.
See In re Marriage of Leathers, 309 Ore. 625, 631 (1990) (stating absent full disclosure joint-representation of adverse parties is prohibited); see also Leah Guggenheimer, A Modest Proposal: The Feminomics of Drafting Premarital Agreements, 17 Women’s Rights L. Rep. 147, 196 (1996) (noting there are adverse parties to prenuptial agreements). See generally Michael Cohen, Trying Second Marriage? Prenuptial is Crucial, Boston Globe, Aug. 20, 2000, at G7 (discussing that parties to prenuptial agreement are opposing each other).
Judith T. Younger, Antenuptial Agreements, 28 Wm. Mitchell L. Rev. 697, 718 (2001) (indicating presumption of informed consent despite not having independent counsel, assuming there is clear language to explaining the significance of possible adverse consequences of prenuptial agreement); John G. Gherini, Note, The California Supreme Court Swings and Misses in Defining the Scope and Enforceability of Premarital Agreements, 36 U.S.F.L. Rev., 151, 163-64 (2001) (examining California’s decision that lack of independent counsel is an important factor in determining enforceability of prenuptial agreement).
See, e.g., Tenneboe v. Tenneboe, 558 So.2d 470, 474 (Fla. Dist. Ct. App. 1990) (explaining that unrepresented party may believe attorney is disinterested in parties); Demaggio v. Demaggio, 317 So.2d 848, 849 (Fla. Dist. Ct. App. 1975) (explaining that husband thought attorney represented both parties to his prenuptial agreement).
e.g., In re Marriage of Benson, 7 Cal. Rptr. 3d 905 (App. 2003), rev’d, 36 Cal. 4th 1096, 116 P.3d 1152 (2005) (ultimately holding that the partial performance exception to statute of frauds did not apply to transmutation agreement).