Proposing the idea of a prenuptial agreement can emotional. But even tougher is finding out during a divorce that the prenuptial agreement you signed is invalid because of simple mistakes. Here’s a list of things to avoid.
Prenuptial Agreement Mistakes
A prenuptial agreement can be deemed invalid if there are mistakes. Here are some commonly made mistakes:
- Same Legal Representation – Both spouses should have separate attorneys that will ensure the client understands the prenuptial agreement independently of the other spouse. This way the signing of the final agreement is done voluntarily, and without one spouse feeling pressured into it.
- Signed Under Duress – A prenuptial agreement can be invalid if one party was pressured into it, or if they were drunk or under the influence of drugs and thus did not have the mental capacity to sign the agreement.
- Signed Too Close to the Wedding – Don’t leave the prenuptial agreement signing to the last minute. If a couple decides to divorce, and the agreement was signed too close to the wedding, it can be argued that one party was coerced into signing. Sign the prenuptial agreement at least one to three months before the wedding date. A spouse should have enough time to deliberate on what they are signing it.
- No Full Disclosure – Make sure all assets and debts are disclosed.
- Child Support Provisions – Leave custody and chill support off of a prenuptial agreement as they are counter to public policy. If a divorce happens, and there are children involved, a court will always rule in the best interests of a child, rather than what was decided on a prenuptial agreement. If such provisions are on the prenuptial agreement it can invalidate the whole thing.
- Biased – If a prenuptial agreement appears to be biased towards one party, it can deemed unenforceable or “unconscionable.”
- Unenforceable Provisions – If an agreement has unusual provisions in it (one person always does the dishes) those provisions can be deemed unenforceable and thus weaken the whole agreement.
- Oral Agreement – The prenuptial agreement should be in written form, with multiple copies: one for each spouse and one for each spouse’s attorney.
- Ambiguous Writing – If the agreement is not clear, or has ambiguous wording, it can be challenged in court.
Work with a Family Law Attorney
Working with a family law attorney to draft your prenuptial agreement is a good way to avoid these common mistakes, as well as ensure that if you get divorced, the agreement can not be invalidated.
For advice on prenuptial agreements and divorce, you need the expert law firm of Korol and Velen, certified family law specialists. Schedule a consultation today.
Source: The Huffington Post, 10 Common Prenup Pitfalls, November 4, 2013