|
|
|||||||||||||||||||||||||
|
|
|
|||||||||||||||||||||||||
|
Pre-marital
agreements continue to be a very hot topic, especially since the law is
always evolving. Personally, I don't believe in the use of pre-marital
agreements- primarily on emotional and psychological grounds. When the
subject of a pr-marital agreement is raised by one person, the other's
feelings are frequently hurt. What happens is
simple. The "in spouse" (the one with the assets) understandably
wants to protect his or her money and property. However, the "out
spouse" (who typically has few, if any assets) feels emotionally wounded
when asked to sign any sort of "pre-nap." This emotional pain and
residual anger often linger quietly within that person's thoughts. Over the
duration of a marriage, this often creates a strain on the relationship. So I often counsel
our clients to use alternatives to a formal pre-nuptial agreement, such as
family trusts. Other alternatives achieve similar levels of protection under
the Family Code, such as maintaining title to property in individual, instead
of switching to joint title. There are many ways to protect the separate
nature of your assets. Representing
Multiple Parties Let us take a look
at the problems that can arise when an attorney represents multiple parties
in a transaction. A recent decision by the Ventura County Court of Appeals
warrants a revisiting of that issue. This case involved
a situation in which an attorney represented both sides in the preparation of
a marital settlement agreement. Subsequently, one
of the parties challenged the validity of the agreement. The trial court
found that both parties had freely entered into the agreement, that it was
fair to both parties, and that there were no mistakes, fraud, or any other
problems that would have rendered it invalid. Nonetheless, the
trial court refused to enforce the agreement on grounds that the attorney had
not sufficiently disclosed the potential conflicts of interests arising from
multiple party representations. Interestingly, the
Court of Appeals reversed the trial court, ruling that parties going through
a divorce should be permitted to avoid the anger, acrimony and cost. The appellate court
further found that the lawyer had made complete and sufficient disclosure,
and ruled that the agreement should be enforced. This decision came
as a surprise to me not because the appellate court enforced the
agreement-that was probably a correct ruling-but because it reversed the
trial court. That's a rarity in family law matters. Regardless of this
outcome, I still believe my advice to avoid multiple representation is valid.
Obviously, if the attorney in this case had not attempted to represent both
sides, there would have been no grounds for the legal challenge that was
made. I would advise
other attorneys to read this decision closely before deciding to represent
both parties in a family law context. (2d Civil No. B140733, Superior Court
No. D262142, |
Attorneys at Law: |
|||||||||||||||||||||||||
|
|
||||||||||||||||||||||||||
