Steps to ensure a prenuptial agreement is enforced

Recently on our legal forum a user asked, “I am getting married in a few months. My spouse and I are each independently wealthy from a previous marriage. I have heard that sometimes courts choose not to enforce a prenuptial agreement. What steps can I take to ensure this does not happen?”

What is a prenuptial agreement?

A prenuptial agreement is a contractual agreement signed by both parties prior to marriage that outlines how a couple’s assets and other property will be divided in the event that the couple eventually divorces. With the proliferation of divorce and second marriages prenuptial agreements have grown in popularity over the last several decades. If done correctly, a prenuptial agreement can allow the couple to alter certain rights (i.e. death benefits, trusts, wills) and the property rights of each couple.

Precautions regarding prenuptial agreements 

Although courts do not routinely disregard prenuptial agreements, there are examples in states where judges have decided that an agreement is not enforceable. With this in mind, it’s important to take the right steps when creating your prenup.

  1. Make sure that both couples are represented by their own legal professional.

One of the first steps to ensuring that your prenuptial agreement is enforced is to have each person hire their own attorney. Although some states allow the couple to use the same attorney and sign some type of waiver, this is not recommended. Hiring an attorney can reduce the risk that the court will rule that one of the parties did not understand their rights and obligations under the contract when it was signed.

  1. Do not create an agreement which violates public policy.

Next, make sure that nothing contained within the agreement violates policy. For example, legal experts warn against provisions which encourage divorce, which threaten a child’s future support- which would be deemed not in the best interest of the child, or agreements with a spouse pertaining to spousal support that puts them at a severe disadvantage following the marriage.

  1. Ensure that you wait the prescribed waiting period.

The waiting period to create a valid prenuptial agreement can vary by state. For example, in some states, couples must create a prenuptial agreement and sign it within a certain number of days from the date of the marriage. For example, in the State of California couples must wait seven days. This mandatory waiting period allows each person the opportunity to review the document and ensure they understand the terms of the agreement.

  1. Determine that each party voluntarily made the agreement. 

To increase the chance that the prenuptial agreement will be enforced it’s important to ensure that each party signed the contract of their own free will. If the court believes that a person was coerced or under duress or forced to sign involuntarily or fraudulently they have the legal right to not enforce the agreement.

Bottom line:

There are any number of reasons a court may conclude that a prenuptial agreement should not be enforced. Hiring a lawyer and understanding your state’s laws, however, increases the chance that your agreement will be enforced.

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