As discussed in my last post, in Massachusetts, a prenuptial agreement is only valid if each person has his or her own attorney. While I explained the why, I didn’t explain the how: namely, the job of each attorney. It would be a waste of time, money, and energy for both attorneys to do the same exact job. Why should each person pay an attorney to draft a full prenuptial agreement and then continue to pay while the two attorneys tried to somehow combine these separate documents? It really doesn’t make sense. That’s why the two attorneys split the task: one attorney drafts the initial agreement (“the drafting attorney”) and the other reviews that agreement (“the reviewing attorney”). So what exactly does the drafting attorney do?
The drafting attorney is usually the first attorney retained. She will work with her client to figure out what the two future spouses’ goals are, and then convert those goals into legally enforceable language. She will provide her client with information about what can or cannot be accomplished through a prenuptial agreement, about what her client’s rights and obligations would be without a prenuptial agreement, about what the consequences of giving up those rights are, and provide advice as to how to weigh the costs and benefits of certain provisions within the wider context of the client’s engagement. After discussing all of these issues, he or she will translate the information into legal language that accomplishes the goals of the agreement, that is enforceable, and that provides both for foreseeable issues and what should happen if an unforeseeable issue arises.
The drafting attorney will also gather financial information from her client and sort and organize this information to prepare it to be disclosed to the reviewing attorney and his client. The drafting attorney will prepare a “schedule” of her client’s assets and liabilities to be attached to the final agreement and provide a copy of it, along with supporting documents, to the reviewing attorney. Making sure these disclosures are made properly and fully is an important part of a drafting attorney’s job, as failure to make them can render the agreement invalid. Once the drafting attorney has completed all of these tasks, she forwards a copy of the initial agreement to the reviewing attorney, along with her client’s financial disclosures, for his or her review.
With the agreement already written per the terms the parties agreed to, what does a reviewing attorney do anyway? Stay tuned for part III.