Last week someone on the State Bar of Michigan Family Law Listserv inquired about whether a lawyer should approve a prenuptial agreement to which no financial disclosures were attached. Many members of the Listserv weighed in on the topic. Most cautioned that a prudent lawyer would make sure the financial disclosures are attached to the prenup to prove full and fair disclosure of assets, liabilities and income. They also cautioned that lawyers should provide good documentation of that disclosure, for example by videotaping the execution of the prenup to eliminate arguments of duress or coercion.
The importance of this good advice is underscored in a recent Georgia case that should be reviewed for good arguments as to setting aside a prenup where no full and fair disclosure can be shown. See Quarles v. Quarles where the Georgia Supreme court reversed a trial court's order granting the husband's motion for summary judgment that the premarital agreement was enforceable. The Supreme Court found that the evidence was disputed regarding whether the husband adequately disclosed his financial information in connection with the execution of the agreement. Because of this, due to the requirement under Georgia law that the parties exchange adequate financial information before execution, the Court held that the husband's motion for summary judgment should not have been granted.