What Makes a Prenup Valid?
Prenuptial agreements (commonly referred to as “prenups”) are contracts signed by a couple before they get married. The prenup specifies how money, real property, and other assets are to be divided in the event of a divorce. Since the divorce rate in the US is a little less than 50%, getting a prenup is a prudent decision that can save you time, money, and heartache down the road.
It isn’t easy to navigate the process of writing a premarital agreement that is both fair and legally binding. To address this, we will go over some of the most important considerations and the benefits of getting legal advice to make sure your prenup is successful.
What Makes a Prenup Enforceable?
After marriage, both partners share their assets and debts. In the case of divorce, one of the most difficult things to determine is how to separate these assets and debts between the two partners. To avoid this, in a prenup both partners fully disclose their assets to determine what will become shared marital property and what will remain separate property during their marriage and in the event of a divorce. If either partner hides any of their assets or debts, the validity of the agreement can be challenged.
Coercion and Duress
Another factor determining whether or not the court approves the validity of the prenup is whether either party was pressured to sign the agreement. In such a scenario the pressured party’s agreement is considered coerced and is not legally binding. To avoid accusations of coercion or duress, it is important that both parties must have sufficient time to look over the agreement and get legal counsel, otherwise the agreement might be thrown out. Both the amount of time required for review of the final agreement and the requirement for counsel are set forth in the law and must be followed strictly.
In general, best practice is to present a final version of the prenup to both parties at least 30 days before the wedding. Additionally, both parties should use different legal counsel to ensure the prenuptial agreement reflects both of their interests.
For certain agreements, the court must find the agreement to be fair (conscionable) to both parties. That is particularly true with agreements related to spousal support, where the parties may agree to terms in a prenup that are later determined to be unconscionable at the time of enforcement, which can in certain circumstances impact the validity of the entire agreement.
If the marriage has lasted a long time, or the disparity between the two spouses is too great, the initial agreement may be considered unconscionable and not be upheld. For example, if one partner was a stay-at-home parent while the other worked, and the prenup stipulated that each party would be entitled only to the money they each earned themselves, the courts are unlikely to enforce such an agreement because it would leave the stay-at-home parent with enough money.
Creating a Prenup with Hart Ginney
If you are about to get married and are thinking about getting a prenup but want to make sure you do so in the most effective, enforceable way, Hart Ginney is prepared to guide you through the process.
Our experience with divorce and family law means you will be in good hands. Contact us today to set up a consultation!