Monday, January 8, 2007
The wedding ceremony date is set. Expensive arrangements have been made. Guests have made their travel plans. But, the negotiations over the pre-nuptial agreement are taking longer than expected. What should you do? Options include:
* Hurry up and conclude the pre-nuptial agreement negotiations before the ceremony (but the pesky lawyers keep getting in the way...)
* Reschedule the ceremony, but this may be expensive, annoying to the guests, and embarrassing
* Convert the pre-nuptial agreement into a post-nuptial agreement, but this means no pre-nup during the interim, and post-nups may not be as readily enforceable as pre-nups
* Convert the ceremony into a sham wedding ceremony, delay the actual marriage until the pre-nuptial agreement is done, and enter into a contract between the non-spouses to confirm that the wedding isn't legal until some later date.
Among the detritus from the Britney Spears/Kevin Federline divorce, we have confirmed that they chose the latter option, entering into an Agreement re September 18, 2004 Wedding Ceremony governing the participation in a "faux wedding ceremony."
I wonder about the enforceability of such agreements. This reminds me of contract provisions that disclaim the formation of a partnership or an employment agreement. The parties can say what they want, but courts and third parties aren't bound by this private determination; public policy may impose a partnership or employment relationship despite the contract clause. So if a third party--such as creditors or the taxman--were to assert that the signatories were married based on the faux ceremony, I doubt the agreement would offer much protection.
As a result, I wonder about the professional responsibilities of a person drafting a contract for a faux wedding ceremony. (Let's ignore the malpractice risks). Here, the lawyers helped the principals perpetrate a sham to anyone who was not clued in to the fauxness of the event. According to the MRPC, lawyers can't help their clients break the law or lie, and they may have to whistleblow on the client if they know the clients plan to lie to commit a crime or fraud. Depending on who said what to whom, the sham may not have met any of these standards, but at the same time, there is something uncomfortable about lawyers supporting client artifices. I'd like to think that most lawyers would choose not to use their talents to do so.