Fox Family Lawyers
Cynthia Moseley Fox
Attorney at Law
7751 Carondelet Avenue,
Suite 700
Clayton, Missouri 63105
(St. Louis)
314.727.4880

Don’t Accept The Ring Before The “Pre-Nupt” Is Finalized

Put yourself in this bride’s place: It’s a week before your wedding. The out-of-town guests have bought their airline tickets and booked their hotels. Your dress has been fitted and ironed. The caterer and florist have cashed your checks. You’re suffering a full-blown case of the last-minute jitters. And here suddenly comes your intended insisting that you sign a pre-nuptial agreement, forsaking your financial rights should your divorce.

                       

My imaginary scenario here embellishes the real-life case of Bud and Alice Thomas, a Southwest Missouri couple. A week or so before their 1988 marriage, on their way to premarital counseling with their minister, he first broached to her the idea of a “pre-nup.” She signed one two days before the wedding, waiving her rights to maintenance, attorney fees and any interest in his business if they broke up.

                    

Bud and Alice’s case is not so rare as you might think. In the last year, I’ve been visited by two young, first-time, madly-in-love brides, in tears because their fiancés had insisted at the last minute on  prenups similar to the Thomases’. In both cases, the man’s well-to-do parents, anxious to protect family money, were the real instigators. And in both cases, I advised the women–for their own welfare and that of any future children--to just say no.   

             

Actually, the late-hour prenups these two men proposed could have worked against the men as well. When the Thomases split, for instance, the trial court in Springfield threw out their prenup as “void, invalid and unenforceable,” partly because it didn’t give Alice enough time “to enter into it freely and fairly.” She walked out of that court with maintenance of $12,178 a month, attorney fees of $63,437 and $1,681.542.72 in cash and other assets.

             

 

The trial court’s finding on the prenup makes good sense to me. I’ve always advised couples to sign off on their agreements before the stamps go on the wedding invitations, or with at least a month to spare before the ceremony. In doing so, I’ve been following case law, which has established two basic tests for these pacts: They must be done with full disclosure on both parties’ parts, and there must be no pressure to sign.

           

To my mind, the less time between the signing and the wedding, the more the document smacks of coercion, and the more vulnerable it is to being overturned. On the surface, the Thomas’ agreement appears to me not to pass the coercion test.

           

But in July the Missouri Court of Appeals for the Southern District disagreed. Its review of the trial court’s finding at the Bud’s behest found that Alice had consulted an attorney privately and understood the agreement before she signed and that Bud had fully disclosed his financial circumstances to her. So, reasoned the appeals court, the prenup was valid after all.

           

Now Alice is appealing that decision to the Missouri Supreme Court, which hasn’t decided yet whether to take the case.

           

Meanwhile, I’m standing by my standard advice about prenups: Do them with as much forethought and time to spare as possible. And with good legal advice as well, of course. Otherwise, couples could end up like Bud and Alice. As their case makes clear, haste makes waste in these matters. And the waste includes thousands of dollars in attorney fees and years of litigation--years when the former spouses could be getting on with their new and separate lives.