In a recent decision in In re Marriage of Clarke and Akel, the Court of Appeals held that a prenuptial agreement was not enforceable against the husband who drafted the agreement because he was unrepresented and did not have the benefit of the statutory seven-day review period.
The law provides that a party to a prenuptial agreement who is not represented by counsel must have received the agreement at least seven days prior to executing it. Further, that party must have received a writing summarizing the terms of the agreement and the rights and obligations the party is giving up in executing the agreement. That party must also sign a document acknowledging receipt of such writing. In Clarke, the Court found that the prenuptial agreement was not enforceable against the husband because he was unrepresented, did not receive the seven-day waiting period and did not receive a summary of the agreement in writing. Significantly, the Court refused to sever the provisions that the husband drafted from the rest of the prenuptial agreement and found that the entire agreement was unenforceable.
The takeaway from this case are twofold. One, both parties to a prenuptial agreement must be represented by counsel to avoid the agreement from being unenforceable against either party. Two, never underestimate the importance of the severability clause. In this case, the severability clause, if included in the agreement, would have saved the remainder of the prenuptial agreement from being invalidated.
Prenuptial agreements pose a landmine of legal issues and you will need an experienced family law attorney to assist you with yours.