Creating a prenuptial agreement is one of the best ways for couples to protect themselves and each other when they marry. However, creating a prenuptial agreement does not guarantee the strength the agreement, particularly if it contains errors or unlawful terms.
When a couple chooses to divorce, many of them assume that their prenuptial agreement will hold up to scrutiny and allow for a smooth divorce process. Unfortunately, it is difficult to create a completely “bulletproof” agreement and many couples who do not examine their agreements closely realize too late that some or all of the terms do not hold up in court.
If divorce is in your future, now is the time to take out your prenuptial agreement and review it for errors and content that may cause complications. The sooner you identify these issues, the more time you have to plan your divorce strategy accordingly and protect your rights until the process finalizes.
Look closely for execution errors
A poorly crafted prenuptial agreement may create more problems than it was intended to solve, and it is always better to know about potential conflicts before they arise during the divorce process. Execution errors that may invalidate you prenuptial agreement include:
- Incomplete or false information, especially involving one or both spouse’s finances
- Failure to fully execute the agreement prior to marriage
- Signing an agreement without reading it
- Signing an agreement without independent legal counsel for each spouse
- Attempting to enforce a verbal, non-written agreement
These errors and others may undermine the validity of the agreement and create opportunities for one or both spouses to challenge the agreement. Challenging a prenuptial agreement is risky for spouses, and may drag out the divorce process, significantly increasing the cost of the divorce.
Examine the agreement for improper execution or content
In some cases, prenuptial agreements do not treat each party fairly. While these agreements allow each party great flexibility in determining the terms of divorce, courts have the authority to approve or disapprove of all terms in an agreement. Aspects of a prenuptial agreement that may not hold up in court include:
- Terms that are illegal, such as forfeiting child support or custody
- Signing an agreement under duress or pressure from another party
- Signing an agreement without proper time for consideration
- “Unconscionable” terms that leave only one spouse in severe financial hardship
Each of these issues may not pass scrutiny in a court, which may refuse to enforce some or all of an agreement. If your agreement suffers from any of these complications, be sure to address these issues as you build your divorce strategy.
Protecting yourself and your priorities throughout divorce is often difficult, both practically and personally. With attention and care, you can use the legal tools you have at your disposal to keep your rights secure until the dust settles on this chapter and you move into the next.