Facts: After living together for around five years, 54-year-old Husband, a pharmacist, married 26-year-old Wife, a college student and pharmacy tech.

Eleven days before their wedding, they saw a lawyer about a prenuptial agreement. They left the lawyer’s office, went to lunch, and returned about an hour later to review the prenuptial agreement with the attorney and sign it.

Seven years later, both filed for divorce.

Husband sought to enforce the prenuptial agreement, and Wife challenged its validity.

Wife knew Husband would never marry without a prenuptial agreement, but she said they never discussed its terms. She claimed Husband took her to see an attorney without telling her she could or should obtain her own lawyer.

Wife claimed she did not understand the agreement but admitted she never told the attorney that when it was explained to her. She also did not request an attorney or financial assistance to obtain an attorney.

The trial court found Wife had “ample time” to seek independent counsel if she wanted to do so, specifically noting that she “had years” to obtain an attorney or “to make some effort to find out what was involved.” The prenuptial agreement was determined to be valid and binding.

Wife appealed.

On Appeal: The Court of Appeals affirmed the trial court.

Tennessee courts must enforce antenuptial agreements between prospective spouses concerning their separate, premarital property if the court finds they signed the agreement freely, and knowledgeably, in good faith, and without duress or undue influence.

Whether each element is established is a question of fact determined from the totality of the circumstances surrounding the agreement’s negotiation and execution.

The party seeking to enforce the prenuptial agreement must prove these elements.

Although representation by independent counsel may be the best evidence that a party has entered into a prenuptial agreement voluntarily and knowledgeably, consultation with independent counsel is not an absolute requirement for validity.

Here, the Court was unmoved by Wife’s lack of counsel:

It is undisputed that Wife was not represented by independent counsel; however, the attorney who drafted the agreement explained each term to both parties prior to their signing the agreement. Moreover, Wife makes no allegation that the attorney misrepresented the terms of the agreement; she merely alleges that she did not understand it “at all.” The terms of the agreement, however, were clear and unambiguous, and Wife was more than sufficiently educated to understand the full import of their meaning. As the trial court noted, Wife had known for years that Husband was going to require a prenuptial agreement to protect his assets or there would be no wedding, and the couple had been engaged for a year prior to going to the attorney’s office to execute the agreement. Moreover, as we noted earlier, the terms of the agreement were clear and unambiguous. Thus, as the trial court correctly found, Wife had ample time and a sufficient opportunity to seek independent counsel, yet she chose not to do so.

The Court agreed with the trial court’s conclusion that Wife freely and knowledgeably entered into the prenuptial agreement without duress or undue influence and, therefore, the trial court’s judgment was affirmed.

K.O.’s Comment: This result is an outlier. Tennessee caselaw is replete with examples of prenuptial agreements being invalidated where one spouse was not represented. See, e.g., Stancil, Grubb, etc.

The best practice remains to require representation for both parties. I refuse to draft prenuptial agreements unless both parties are represented. Although things worked out fine for the drafting attorney this time, that practice remains too risky for me. Your risk tolerance may differ. Proceed with caution.

Howell v. Howell (Tennessee Court of Appeals, Middle Section, February 5, 2021).

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