## Facts

- Brenda Diane Ware and David Gary Ware began living together around 1991 and married in February 1993.
- Before the wedding, Mr. Ware asked an attorney to prepare an ante-nuptial agreement to protect Mr. Ware’s premarital business interest in a pizza-restaurant franchise.
- About ten days before the wedding, the attorney first presented the draft agreement to both parties; Mrs. Ware objected to an alimony-waiver provision, which was removed.
- The parties signed a revised agreement the next day at the attorney’s office.
- The agreement stated Mr. Ware’s pizza-restaurant franchise interest would remain his property.
- The agreement included an attorney certification stating the attorney had fully advised both parties of their legal rights.
- Mrs. Ware testified she had no advance notice of the agreement and was told she did not need her own lawyer.
- During the marriage, Mr. Ware expanded business holdings connected to the original enterprise.
- In 2005, Mrs. Ware filed for divorce; the parties disputed the agreement’s enforceability and the classification and valuation of the business interests.

## Issues

1. Whether a prenuptial agreement is enforceable when one attorney purports to represent or counsel both prospective spouses in negotiating and executing it.
2. Whether the circumstances surrounding execution—timing, legal advice, and attorney certification—provided a meaningful opportunity for independent counsel and resulted in a knowing and voluntary agreement.
3. If the agreement is unenforceable, how the premarital business interest and related entities should be classified, valued, and equitably distributed.

## Decision

- The Supreme Court of Appeals of West Virginia reversed the circuit court and held the prenuptial agreement invalid and unenforceable.
- The Court reinstated the family court’s conclusion that the agreement was void.
- The Court held as a rule that one attorney may not represent, nor purport to counsel, both parties to a prenuptial agreement.
- With the agreement unenforceable, the Court affirmed equitable-distribution treatment that allowed Mrs. Ware to share in marital value and increases attributable to the marriage.

## Legal Principles

- Parties negotiating a prenuptial agreement occupy inherently adverse positions regarding property rights upon divorce.
- One attorney may not represent, nor purport to counsel, both parties to a prenuptial agreement; such dual involvement is incompatible with providing undivided loyalty and adequate legal advice to each.
- Enforceability of a prenuptial agreement requires that assent be knowing and voluntary and preceded by a realistic opportunity for independent legal advice.
- An attorney certification stating that both parties were fully advised can improperly suggest neutral, complete advice to the non-represented party and may negate a meaningful opportunity to seek independent counsel.
- When a prenuptial agreement is void, equitable distribution may include a spouse’s share in increases in value of a premarital business to the extent attributable to marital efforts and contributions.

## Conclusion

The court invalidated the prenuptial agreement because a single attorney’s purported counseling of both parties and the surrounding circumstances prevented a knowing, voluntary execution with meaningful access to independent advice; the divorce therefore proceeded under equitable-distribution principles rather than the agreement’s property allocations.


Ware v. Ware, 687 S.E.2d 382 (W. Va. 2009)