So, you’ve made the decision to get a prenup, and you also want a lawyer to assist you. But have you thought about the reasons why a lawyer would not want to do a prenup? That’s right; there may be certain instances when a lawyer turns down a potential prenuptial agreement client. Typically, these circumstances will revolve around the prenup eventually being invalidated. In other words, a lawyer doesn’t want to sign off on a prenup that has a good chance of being thrown out in court. Not to mention, it could lead them down an ugly path of legal malpractice.
Just like a doctor wouldn’t perform a nose job that they knew would ultimately result in the patient’s nose eventually falling off. Attorneys do not want to sign off on or advise clients in creating invalid contracts!
Too close to the wedding day
Your wedding is three days away, and you think now is the perfect time to walk into an attorney’s office and get that prenup checked off your to-do list. Well, you thought wrong! Especially if you live in California or other states with time-restrictive limits around the creation of a prenup. For example, in California, there is something known as the “7-day rule,” which requires at least seven days from the day the agreement is in its final form and the day the spouses sign the agreement. This rule is meant to provide each spouse with enough time to get an attorney (if they want one) or make sure they both have considered the effect of the contract. This is why a California attorney may decline to draft a prenup for a couple too close to the wedding day because they may be in contradiction to the 7-day rule.
Another state with a time-restrictive requirement is New Hampshire. In New Hampshire, the prenup should be presented to the other partner at least 30 days prior to the wedding to allow a bride or groom a reasonable opportunity to consult with an attorney if desired. In one particular case from New Hampshire (In re Est. of Hollett, 834 A.2d 348 (2003)), a court invalidated a prenup based on duress because it was presented only a few days before the wedding day. Yes, the court said the bride signed the prenup under duress because it was too close to the wedding day, rendering it invalid and unenforceable. You can read more on this case on our New Hampshire page.
As you can see, some states have time-restrictive requirements surrounding prenups, and a lawyer will not support a client who wants to break those rules. It simply won’t result in a valid prenup.
The terms requested are unconscionable
If you or your soon-to-be spouse request “unconscionable terms,” a lawyer may decline to advise or represent you. For example, (depending on your state) an unconscionable term can be anything from an infidelity clause in California, or other “crazy” provisions, to extremely lopsided terms, leaving one party destitute. Sometimes, through negotiations, one party will let go of their unconscionable provisions, but sometimes they are not willing to budge. If they don’t want to budge, this may be when an attorney declines to continue.
Why does this matter? If terms in a contract are deemed unconscionable, it puts the entire contract at risk of being thrown out. The term unconscionable varies slightly from state to state. However, the overall theme of the word is that it is beyond unfair.
Let’s look at the Big Apple for some insight. In New York, the court defines an unconscionable agreement as “one which no person in his or her senses and not under delusion would make on the one hand, and no honest and fair person would accept on the other, the inequality being so strong and manifest as to shock the conscience and confound the judgment of any person of common sense.” In the case of Taha v. Elzemity, the court found that a prenup (if enforced) was unconscionable because it would cause one spouse to become a public charge. In that case, the prenup awarded the wife a $20,000 lump sum in alimony (i.e., maintenance or spousal support). Doesn’t sound so extremely “unfair,” right? Wrong! Everything depends on the circumstances, and in these circumstances, this was considered unconscionable. The husband was a physician making $300,000 per year, while the wife had no assets, was unemployed, and was their children’s caregiver. The result would be her relying on public assistance. All of these circumstances combined led the court to declare this unconscionable!
Each state has its own precedent of what is considered an unconscionable agreement. This is why some attorneys may turn down a prenup that includes terms they know will be deemed unconscionable in their state court. It makes sense!
One party has an attorney, and the other doesn’t
Some attorneys may decline to represent a client if their client’s spouse doesn’t have an attorney. Generally, most states do not require both parties to have an attorney. However, declining services to a client for this reason, may simply be an attorney’s preference to avoid any liability issues.
Not only does it potentially create liability issues for the lawyer, but it can also create enforceability issues for your prenup. In some states, having only one party with an attorney can be a red flag against voluntariness. A court may see it as one party did not sign it voluntarily. Lawyers help negotiate the terms, explain the law, and cut through the dense contractual language. On the other hand, sometimes, only one party having an attorney will be okay in the court’s eyes. It really just depends on your state. Many attorneys will take the side of “better safe than sorry” and require their client’s spouse to have an attorney, as well.
One party has a “take it or leave it” mentality
When clients have a “take it or leave it” mentality, it means they are likely not open to negotiations or compromises with their fiance. A prenup is about creating a contract that feels like a win-win for both sides. It shouldn’t be the demands of one. Lawyers frequently deny services to this type of client. Number one, this isn’t exactly the type of client an attorney dreams of representing (nor is it anyone’s dream spouse)! Number two, this is a breeding ground for a future invalid contract. Again, state law varies, but there are states that might find this “take it or leave it” mentality to be considered a step towards duress, coercion, or undue influence, which can lead to your prenup being thrown out.
Let’s look at a real life example of how this “take it or leave it” mentality can unravel your prenup. In a case from Florida, the groom told his bride that he would not marry her unless she signed a prenup (essentially an ultimatum). In addition, he repeatedly told her that signing the prenup was a U.S. immigration requirement for emigrating from Colombia. He also pushed the prenup on her the day before the wedding. On top of all of this, she was recovering from an abortion while dealing with emigration and her wedding.
Refusing to disclose finances
Last but not least, refusing to disclose all of their finances could make an attorney say “no thanks” to your case. Let’s say John and Emily are about to get married. John has a secret bank account that he keeps hidden from Emily, where he stores his sacred $300,000. He’s been saving it since he was a little kid, and he truly believes it should be kept in his private account for emergencies. He tells his attorney about this secret little account and says he’s not going to disclose this to Emily. The attorney explains to John that not providing full and fair disclosure could be grounds for invalidating a contract. It’s a no-go. John doesn’t care. He wants to keep it a secret.
In this case, the attorney may decline to continue on the grounds that John refuses to fully disclose his finances. Every state has slightly different requirements surrounding financial disclosure in the prenup process, but the general consensus is that it needs to happen, and it needs to be truthful.
Out of budget
Money makes the world go ’round! If you can’t afford the prenup, then a lawyer may decide not to take on your case. Prenups can cost anywhere from $1,000 to $10,000, depending on your situation. HelloPrenup is changing all of that with our affordable prenups at just $599 per couple.
Some family law attorneys may decline their services if the client comes in too close to the wedding day. Timing is an important part of the prenup-making process, and it can lead to invalidation if done too late. An attorney may also turn down a client if the client is requesting (and not budging) on unconscionable terms. These are typically terms that are extremely unfair. The same thing goes for a client that comes in, and the client’s spouse refuses to get their own attorney. This can lead to too much liability for one attorney, so they may decline. A client with a “take it or leave it” mentality may also be denied. This can foster coercion, duress, or undue influence, which could invalidate an agreement. Finally, it may come down to budget. If a client doesn’t have the funds for the service, then the attorney may not take on the case.
Nicole Sheehey is the Head of Legal Content at HelloPrenup, and an Illinois licensed attorney. She has a wealth of knowledge and experience when it comes to prenuptial agreements. Nicole has Juris Doctor from John Marshall Law School. She has a deep understanding of the legal and financial implications of prenuptial agreements, and enjoys writing and collaborating with other attorneys on the nuances of the law. Nicole is passionate about helping couples locate the information they need when it comes to prenuptial agreements. You can reach Nicole here: [email protected]