Areas of Practice
Marital Agreements
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, Ventura County). And even if both parties to a legal agreement have just one attorney representing them, one party should retain an independent counsel to at least read and review the documents.