What is a Prenuptial Agreement?
A prenuptial agreement, or prenup, is a form of protection for both parties entering a marriage. A prenuptial agreement can protect your funds and assets that you hold prior to entering into the marriage. A prenup can also define the amount of debt each person may owe before getting married and make each person responsible for those amounts. In the unfortunate case of a divorce, a prenup can be extremely useful because it is an agreement on many of the key issues that would need to be determined within a divorce. Oftentimes, having a prenuptial agreement helps to ease the tension and conflict within a divorce process. It often helps protect prior children if you were to die without a will.
There are requirements that must be met for a prenuptial agreement to be valid both at the time it was entered as well as at the time it is sought to be enforceable.
Why a Prenuptial Agreement May Not be Valid
There are a few reasons as to why a prenuptial agreement may be determined to be invalid by a Court. This article will discuss five reasons why a prenup may be unenforceable.
No Written Agreement
The first reason would be if your ‘agreement’ is verbal. A prenuptial agreement must be in writing. If you earn $250,000.00 per year and your soon-to-be-wife who is a part-time waitress tells you that she would never go after alimony from you if you get divorced unless that agreement is in writing, there is no way a Court would hold her to that statement. If you want it to be enforceable, it must be in writing.
In all prenuptial contracts, both spouses need to provide full and adequate disclosure of each person’s individual assets and liabilities that they are bringing into the marriage. If this is not done, the validity of the agreement may be challenged. Providing disclosure of all assets to each party is ethically and legally necessary to ensure that both you and your to-be spouse actually understand the financial picture he or she is walking into because if you don’t know what it is, how can you know what you’re giving up? You can’t; so that’s why this is a requirement.
Coercion at Signing
For a prenup to be valid, both you and your soon-to-be spouse have to enter the agreement willingly and without coercion. This may also include situations where there was not enough time allotted for each party to analyze the contract thoroughly and obtain individual legal advice. Weddings often take months of planning. The same care should be given to a prenuptial agreement. If one spouse did not have time to fully read the document or was pressured to sign, the agreement may be held to be unconscionable and unenforceable by a Judge. Just to clarify, there’s usually one person who is not as thrilled to enter into the prenuptial agreement as the other. If the to-be spouse with more to lose if the relationship goes south says he or she refuses to get married unless the prenuptial agreement is signed, that is not going to be enough to show there was an unwillingness to sign or coercion. There needs to be more than that to show this requirement was not met.
No access to Legal Counsel
In prenuptial agreements, individual legal counsel is advised for both parties, and a lack of experienced counsel may be another reason why a prenuptial agreement may be unenforceable. The laws surrounding divorce can be complicated and they are subject to change. The state allows you to contractually give away rights you might otherwise be afforded if you did not have a prenuptial; however, the state wants to ensure that you understand the rights you are giving up. Now, if you choose not to obtain a lawyer thinking that makes it easy to get out of later, that’s a bad position to take. The counter-argument to that is that you had the opportunity to have legal counsel but voluntarily chose not to. Ignorance of the law is never an excuse if you had the opportunity to obtain information and advice. If you’re the to-be spouse who wants the prenuptial, you may want to invest a few hundred dollars into a separate attorney for your better half to ensure they cannot argue later that they did not understand what they were giving up.
It’s Unconscionable at the Time Entered or at the Time Enforced
This is a tricky one. If you’re the one who is giving up rights you might otherwise have if you get divorced, you may feel like your to-be spouse is not being fair. But fairness is very different than unconscionableness. The longer your marriage lasts and the greater the disparity between the two spouses may lead to a greater chance of the prenuptial agreement being unconscionable. If the agreement is set up to leave one spouse on the street without the financial means to be able to support him or herself, there’s a higher chance the Judge may determine the agreement to be unconscionable and invalid.
Enforceable Prenuptial Agreements
If you are considering marriage, you may want to think about whether a prenuptial agreement would be in your best interest. If you decide to move forward with a prenup, make sure you obtain a lawyer who understands what is necessary for a prenuptial agreement to be enforceable. Our experienced team at O’Connor Family Law can help you create a prenuptial agreement that meets your needs and has the best likelihood to be held as enforceable. Call today to schedule an intake so we can get to work on your premarital agreement and protecting your future!