A prenuptial agreement, also called a "prenup," is used to allocate and determine financial rights between spouses. It is a useful agreement in the unfortunate event of a divorce. Prenups are designed to keep down litigation costs so that both parties can focus on moving forward.
However, it is possible that a prenup could be found invalid by a court for a number of reasons. The following are important facts that could affect the validity of a prenuptial agreement:
- Prenuptial agreements must be written and signed by both spouses before the marriage.
- These agreements are only allowed to cover certain aspects of the marriage, mostly centering around financial rights. If a prenup tries to allocate child support or custody, the court may invalidate all or part of it.
- Both parties must disclose all pertinent information. The prenup is only as good as the information it is based upon, if either party thinks they can avoid their responsibilities by hiding or misrepresenting their financial assets then the entire agreement could be stricken.
- Each spouse should be represented by their own attorney, especially if one spouse hires their own lawyer. Prenuptial agreements are drafted in the anticipation of divorce, a contentious event, so no attorney can effectively help both parties.
- The agreement must be freely entered into by both parties. This means that both parties must have sufficient time to review the agreement and no one spouse can pressure the other.
These are some of the most common reasons why prenuptial agreements are stricken by the court. Essentially, it is important that both spouses feel that their interests were adequately considered in the agreement. If there are any facts to undermine this basic assumption, then part or all of the agreement could be invalid.
If you are considering divorce then you may want to speak to a family law attorney. The prenuptial agreement is not the airtight bullet-proof solution that you may believe it is. You may need to fight over the validity of the agreement, so it is best going into this with both eyes open and ready.