Even a few years ago, requesting a prenuptial agreement was considered an insult to a fiancée. Many couples shied away from talking about entering into a prenuptial agreement before marriage due to the hard feelings that the topic evoked. However, times have changed and now a prenuptial agreement is becoming common among high net worth spouses, not just celebrities.
A prenuptial agreement helps spouses to protect assets that each held prior to a marriage. It highlights how property will be divided between spouses if they part ways. A prenuptial agreement usually protects assets of a spouse who had accumulated more financially before the marriage and who would have more to lose after divorce.
Although considered difficult to invalidate, here are five conditions in which a prenuptial agreement can possibly be voided:
Not a Written Contract
First of all, a prenuptial agreement must be in writing and signed by both spouses to be enforceable. It cannot be created orally.
Improper Execution
An agreement must be signed well in advance of when the wedding is taking place. Having your fiancé sign the paperwork hours before the wedding can raise a strong inference that your spouse did not sign the agreement voluntarily but under duress. Additionally, a spouse may challenge the agreement if they felt coerced into signing, for example, due to threat of physical or psychological harm.
Lack of Legal Counsel
Each party should have the opportunity to seek independent legal counsel. When one of the signing parties does not receive private legal counsel before signing or didn’t have the time for it, that could be grounds for invalidation. Having an attorney review the document is not mandatory, however, it is highly recommended to ensure the prenuptial agreement is enforceable.
Failure to Disclose
An agreement containing a false or incomplete disclosure from either spouse regarding income, assets, or liabilities will likely be disregarded by a Maryland court. Whether or not the failed disclosure was a serious error or a case of fraud, there would be no way for the other spouse to determine if the contract was fair, as well as what they might be giving up.
Unconscionability
If the various provisions or terms included in the prenuptial agreement are extraordinarily unfair or illegal, given the circumstances of the parties, a court could reject to uphold it. For example, a prenup can’t decide issues of child support or child custody. There is no agreement that can waive a child’s right to support from the parents, and a court must decide or approve of a custody arrangement based on the child’s best interests.
Prenuptial agreements can cover decisions regarding the following issues:
- Property rights to property acquired before or during the marriage.
- Division of assets and debts.
- Alimony: the amount and duration.
- Inheritance rights
- Wills: whether or not they will be written to enforce the agreed-upon terms.
Modifications to a prenuptial agreement can be made following a marriage, as long as both spouses agree, and the amendments are in writing as well assigned. When a marriage has been annulled or voided, courts will not require a prenuptial agreement to be implemented.
Generally, it is difficult to prove that a prenup contract is legally void, therefore courts find most to be enforceable. When a spouse is challenging an agreement’s validity, either due to fraud, coercion, duress, a mistake, undue influence, or unconscionability, they have the burden of proof to show that the contract is unenforceable.
Whether you need an experienced Florida prenuptial agreement attorney to help draft a prenuptial agreement or simply review one before it is signed, the experts at Steger Law firm will ensure that it is valid and contains executable terms. Check out their website today to schedule an appointment.