If you have been following our blog, you are familiar with the practical reasons to draft and sign a prenuptial agreement before walking down the aisle: enforcing social media clauses, protecting a family inheritance or specifying asset distribution. While many may feel that mentioning the topic of a prenup is akin to dooming a marriage before marriage vows are even uttered, this contract can promote peace of mind before the wedding takes place. By establishing guidelines for dissolution of the marriage, individuals can ensure that their interests will be protected should the marriage not last.
Such protection is a reason to be proactive. It should also be a motivation to be particular in how you craft that contract. After having gone through the angst of determining post-marriage provisions, some couples are surprised to find that their prenuptial agreement is not valid. Should the contract be riddled with loopholes or the divorce be contentious, certain conditions established in the prenuptial agreement may be disregarded in divorce court.
It is for these reasons that drafting a specific contract is so important. If you are determined to protect your self-interests in the event of a divorce, these are pitfalls you will want to avoid when you are designing a prenup:
1. The prenup must be written and signed by both parties.
When couples are seeking to separate assets, they will find that a “he said/she said” line of defense or a reference to a handshake agreement does not equate to a prenuptial agreement. A written and signed document will help the judge to assign property rights.
2. Those signing the contract should be given ample time to review the provisions.
Contracts can be invalidated if either signee is pressured into signing the document or is not allowed to study the document before signing it. Having been given the contract, individuals are usually allotted seven days to sign the prenup. Those requiring a partner to sign the contract immediately may inadvertently invalidate the contract because this action can be construed as forcing the partner into signing the document.
3. The prenuptial agreement must be filed properly.
In order for this document to be recognized in court, it must be drafted correctly and filed appropriately. For this reason, it’s best to ask someone with a legal background to write the text. Online prenup forms are generic and may not address the specific needs of the interested parties.
4. The document must contain a true record of assets and liabilities.
For the agreement to be considered legal and binding, it must contain an accurate account of property, income, assets and debts. Any financial information that is knowingly omitted from the document can nullify the contract.
5. The agreement should be reviewed by the appropriate legal counsel.
According to the Uniform Premarital Agreement Act (UPAA), the prenup will not be recognized if both parties do not have a legal representative evaluate the contract. Should either individual refuse to hire an attorney to read the document, that person is required to sign a waiver declaring this denial of services. Additionally, it is recommended that each individual hire separate counsel to avoid conflict of interest.
While it may be uncomfortable to consider, signing a prenuptial agreement can promote peace of mind. Those interested in protecting their assets before exchanging vows are encouraged to meet with a knowledgeable attorney to determine the best course of action.