A prenuptial agreement can be a great way for both spouses to protect their separate assets if the marriage someday ends in divorce. But like all contracts, prenups are only useful if they can be enforced. And unfortunately, many prenuptial agreements are not scrutinized or tested until the divorce is already in process, at which point it may be too late.
The best way to prevent problems is to take more care on the front end. Everything from how you draft the agreement to how it is presented to your betrothed can impact its validity and enforceability. Below are some common reasons prenups are ruled invalid.
Allegations of coercion or lack of consideration
Consider the following scenario. It is just three days until your wedding, and your fiancé hands you a prenuptial agreement to sign. You had no hand in writing it and you have no time to review it with your own attorney. Your fiancé says that if you don’t sign, the wedding cannot happen.
Not only is this a horrible thing for someone to do, it would likely invalidate the prenup. A prenuptial agreement needs to be signed freely by both parties with no hint of coercion or undue pressure. The embarrassment of calling off an impending wedding might be enough to force some spouses-to-be into signing something they don’t agree with. They could cite this as an invalidating factor in divorce.
Second, each party needs time to review the agreement and to consult with his or her own lawyer before signing. It is not enough for the couple to meet with one lawyer together because that attorney cannot impartially serve both sides equally.
Agreement contains false or incomplete information
Both parties need to disclose all relevant financial information and it must be accurate. If either party submits false information or conceals something relevant, the agreement may be unenforceable.
Provisions are invalid or unconscionable
A prenuptial agreement is a customized contract, but it is not an anything-goes arrangement. For instance, you cannot include any terms dictating the child support obligations of either spouse. If invalid provisions were included, it won’t necessarily invalidate the whole document, but those provisions would at least be thrown out.
Additionally, all contracts must meet basic standards of fairness. If your agreement was so lopsided as to be considered “unconscionable” by a court, it would likely be thrown out.
Get help from an experienced attorney
If you’re considering a prenuptial agreement, check to see that your fiancé is on board and consult with an attorney well before the wedding. By taking these and other steps, you can ensure that your contract will be valid and enforceable if divorce ever becomes necessary.