Prenuptial Agreements: Are they Foolproof?

A prenuptial agreement is a legal document that financially protects both people who are about to get married. With a prenuptial agreement, a couple can protect a family inheritance, a successful business, or ensure that children from a previous marriage are cared for financially in the event of a divorce.

Unfortunately, many people develop what they think is a foolproof prenuptial agreement, only to have the document thrown out by the courts during divorce proceedings. This is because a prenuptial agreement is not foolproof. Therefore, many guidelines must be followed when developing a prenuptial agreement in order to ensure that assets are properly protected. Without following these guidelines, a person entering into marriage risks losing everything he has in the event of a divorce.

1. Make a full written disclosure of all assets and liabilities of both parties

If it is shown that one or both parties failed to disclose assets or liabilities, the prenuptial agreement can be deemed invalid by the courts. Obviously, the courts will be far less forgiving of the person who failed to disclose information. Therefore, an important part of protecting assets is to come clean about them in the first place.

2. Make sure the terms of the prenuptial agreement are reasonable and fair.

The courts have the right to invalidate an entire prenuptial agreement, or portions of it, if it is considered unreasonable or unfair. In particular, a judge might throw out child support or custody agreements as outlined in a prenuptial agreement if these agreements are not in the best interest of the child.

Also, a prenuptial agreement should not include frivolous demands, such as who will take care of which chores. These will be looked down upon by the court and can result in the entire prenup being thrown out.

3. Make sure both parties are represented by separate legal council.

Before seeing a lawyer to draw up a prenuptial agreement, the engaged couple should sit down together and discuss what they each believe should be included in the agreement, such as individual assets, children, and other marital issues. After doing this, two different lawyers should be contacted to finalize the prenup.

If only one person has legal representation, or if the same lawyer represents both parties, when developing a prenup, the entire agreement can be invalidated. This is because one person can claim to have been unable to completely understand the prenuptial agreement before signing it.

When separate lawyers are hired, the lawyers work together to write the agreement, with each representing the best interest of their own client. Both parties having separate legal representation ensures that they each had the opportunity to have the prenuptial agreement completely explained prior to agreeing to it and signing it.

4. Be sure to check into laws specific to the state the marriage will take place.

Laws about prenuptial agreements are not consistent from state to state. For example, some states require that a prenuptial agreement be notarized or witnessed, while others do not. Therefore, it is important to consult a lawyer who is familiar with the laws specific to the state in which the engaged couple will reside after marriage.

5. Make sure both parties have time to look over the agreement.

A court is less likely to uphold a prenuptial agreement that was completed and signed shortly before the wedding date. In the eyes of the court, a prenuptial agreement that was signed shortly before the wedding date shows signs of coercion. If the court has any reason to believe one of the parties felt forced to sign the agreement, it becomes invalidated. Therefore, a prenuptial agreement should be signed at least one month before the wedding date. This also gives both parties time to think it over and to back out of the agreement before it is finalized by a wedding.

A prenuptial agreement is an important document that must be taken seriously. The future of both parties may depend upon it.