By Allison Maxim, Attorney |
So what does the Kremer case mean for those of you who are getting married with an Antenuptial Agreement in the works, or for those of you who are considering divorce and have an Antenuptial Agreement in place?
It means there is more to consider about your circumstances at the time you sign the Antenuptial Agreement than previously thought. More to argue about if the validity of such an agreement is challenged in a divorce; and more to consider when crafting language in future Antenuptial Agreements.
Rather than evaluating the validity of an Antenuptial Agreement based on two factors – (1) whether there was full and fair disclosure of the income and property of each party, and (2) whether the parties had an opportunity to consult with an attorney of his/her choice – the Court of Appeals in the Kremer case determined that the validity of an Antenuptial Agreement must be evaluated based on the following four factors:
- whether there was fair and full disclosure of the parties assets;
- whether the agreement was supported by adequate consideration;
- whether both parties had knowledge of the material particulars of the agreement and of how those provisions impacted the parties’ rights in the absence of the agreement; and,
- whether the agreement was procured by an abuse of fiduciary relations, undue influence, or duress.
So, for example, if you are contemplating a divorce and you and your spouse signed an Antenuptial Agreement (anytime in the past 37 years) then you will want to gather information about the form of the original financial disclosure (i.e. how was disclosure made? Is the disclosure documented? If so, how? Etc.)
Per factor number two, you will also want to understand the term “consideration.” Consideration is a legal term that means: “something (such as an act, a forbearance, or a return promise) bargained for and received by a promisor from a promise.” Black’s Law Dictionary (10th ed. 2014). In other words, a valid Antenuptial Agreement will require a negotiation and it requires one party to give something in return for the other party’s agreement to the terms of the Antenuptial contract.
If both parties to an Antenuptial Agreement consulted with attorneys prior to signing the agreement, then it could be assumed that they had knowledge of the substance and “material particulars” of the agreement and his/her rights if the agreement were not signed. But, as in Robbie and Michelle’s case, having an attorney review the agreement prior to the wedding does not automatically meet the requirement that a party had knowledge of the material particulars of the agreement and of how those provisions impacted his or her rights.
Finally, you will want to consider whether there was undue influence, duress, or coercion by one party toward another when the agreement was executed. Undue influence, duress, and coercion are also specific legal terms that require proof. For example, undue influence is “[t]he improper use of power or trust in a way that deprives a person of free will and substitutes another’s objectives[,or] … the exercise of enough control over another person that a questioned act by this person would not have otherwise been performed, the person’s free agency having been overmastered.” Black’s Law Dictionary (10th ed. 2014). So undue influence does not mean psychological or emotional pressure of one person by another. There is more to it than that.
It is likely that most situations involving an Antenuptial Agreement and potential divorce will be fairly straightforward, and the Agreement will be enforceable. However, the recent case of Kremer v. Kremer has thrown some additional complexity into the mix. You would be well served to have your situation reviewed by an experienced attorney.