|Model Answer to MPTE|
|Two Part Test||
1. The Draft Prenuptial
Agreement May Not be Enforceable Since It Does
Not Fully Disclose the Amount, Character and
Value of Mr. Hayworth's Property to Ms. Wexler
and Because Ms. Wexler May Not be Found to Have
Acted Intelligently and Voluntarily.
In re Marriage of Watson, the court set forth a two-part test to determine whether a prenuptial agreement is fair to the party who is not seeking enforcement of the agreement.
A) Whether full disclosure has been made by
the parties of the amount, character, and value
of the property involved, and
The court stated independent representation is not determinative as to the enforceability of the agreement, but depends on the facts in each case. Factors that favor enforceability, even where the spouse was not independently represented include:
|Factors favoring enforceability||
(1) Advice well in advance of marriage that a premarital agreement would be sought. Here, the wedding is two weeks away. So this factor cuts against enforceability.
|Factors against enforceability||
On the other
hand, factors that have voided a premarital
|Not related to past representation of Wendy||
You are quite correct that you should not represent Wendy nor act as an intermediary. However, your past representation of her in an unrelated personal injury case place a heavier burden on you to conform to the Rules of Professional Conduct.
In our case, Wendy's personal injury settlement is not substantially related to the prenuptial agreement. Therefore, you are not in violation of Rule 1.9.
|Wendy may believe you would protect her interests||
Rule 4.3 states that when dealing with an unrepresented person, the lawyer shall not state or imply that she is disinterested. The comment to Rule 4.3 cautions the lawyer where the unrepresented person is not experienced in legal matters. The lawyer must offer no advice other than to obtain counsel and must make clear she is not acting in behalf of the unrepresented person.
Wendy is a nurse whose only experience with lawyers may have been her own divorce and her personal injury suit. She is probably inexperienced in legal matters.
There is a greater danger that she may believe you are disinterested or even that you are acting in her interest because you represented her in the past in the personal injury matter.
Therefore, you must take pains to make sure she understands you represent only Hank's interests. Because of her relative lack of sophistication and your past representation, I strongly advise that you insist that she obtain independent counsel. Otherwise, the validity of the agreement may be in jeopardy.
©1997-2013 Vivian Dempsey. Phone: 510-644-3343
The Writing Edge . All rights reserved.