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The Top Ten Reasons Prenuptual Agreements are Not Valid

by | Sep 1, 2015 | General |

In my estate planning practice I commonly advise them to consider a prenuptial or postnuptial agreement. The following is a great article on why it is so important to hire an attorney who is knowledgeable in this area to assist you in the creation and signing of such a document. “Prenups can be a great tool for couple to use if they are thinking of getting married. A prenuptial agreement can help you establish the financial rights of you and your spouse in unfortunate event of a divorce including protecting a family business, or securing your personal assets. However, prenups have to be done right in order to be valid in your state.

Let’s take a look at the top 10 reasons why a prenuptial agreement might be invalid.

1. NO WRITTEN AGREEMENT: Premarital agreements must be in writing to be enforceable.

2. NOT PROPERLY EXECUTED: Both parties must sign a premarital agreement before the wedding in order for the agreement to be considered valid.

3. YOU WERE PRESSURED: A premarital agreement may not be valid if one of the spouses was pressured by the other (or by his or her lawyer or family) to sign the agreement.

4. YOU DIDN’T READ IT: If your spouse-to-be puts a bunch of papers in front of you, including a premarital agreement, and asks you to sign them quickly, the premarital agreement may not be enforceable if you sign it without reading it.

5. NO TIME FOR CONSIDERATION: A prospective spouse entering into a premarital agreement must be given time to review it and think it over before signing it. If the groom hands the contract and a pen to the bride just before she says, “I do,” the agreement is probably invalid.

6. INVALID PROVISIONS: Although a premarital agreement can cover just about any financial aspect of the parties’ relationship, it cannot in any way modify the child support obligations that either spouse would have if the marriage should end in divorce. Any other provisions of the agreement that violate the law would also be invalid. It is possible, however, that the court would strike the illegal clauses and enforce the remainder of the agreement.

7. FALSE INFORMATION: A premarital agreement is valid only if it is entered into after full disclosure by both parties — as to their income, assets, and liabilities. If one prospective spouse provides the other with information that is not true, the agreement is invalid.

8. INCOMPLETE INFORMATION: Failing to provide pertinent information is as bad as providing false information, and it renders a premarital agreement unenforceable.

9. NO INDEPENDENT COUNSEL: Because their separate interests are at stake, both parties to a premarital contract should (and in some states must) be represented by their own attorneys, or the agreement will not be enforced.

10. UNCONSCIONABILITY: It’s true that you can agree to give up your right to inherit from your spouse, which you would otherwise be entitled to do upon your spouse’s death, even if he or she left you out of a will. You can sign away your right to spousal support if you should end up in divorce court, even if your spouse makes ten times as much money as you do. You can even agree that your spouse gets all of the property and you get all of the bills, if that is what you want to do. But if the agreement is so grossly unfair that one party would face severe financial hardship while the other prospered, the court is unlikely to enforce it. Basically, “unconscionable” contracts are generally found invalid, and premarital agreements are no exception.

Consult an Experienced Family Law Attorney

If you and your future mate are considering a prenup, you may need the assistance of an experienced family law attorney. A good lawyer will ensure that your prenup fits your needs and stands up well to challenges that may arise. Plus it’s important to speak to a lawyer familiar with the laws in your jurisdiction. Most offer free consultations, so your first step should be to contact an experienced family attorney.”

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If we can assist you in the preparation of a prenuptial agreement please feel free to call me at (904)366-2703 or email me at [email protected]