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Mistakes to avoid when preparing a prenuptial agreement

This article looks at three of the most common reasons why prenuptial agreements may be voided.

For most people who are about to get married, signing a prenuptial agreement is a prudent step that can help them protect their assets in the event that their marriage comes to an end. As CNBC reports, 62 percent of matrimonial lawyers in a recent survey said they had seen a jump in the number of clients requesting a prenuptial agreement in the past three years. Prenuptial agreements allow couples to decide for themselves how their assets and debts will be divided in case of a divorce. However, to be enforceable a prenuptial agreement needs to be fully compliant with the law. Any of these following mistakes or problems could result in the agreement being voided by the court and a couple’s property being divided in a way that one or both spouses may not consider to be in their best interests.

Legal errors

A prenuptial agreement is a legally enforceable contract between both spouses. As with any contract, a prenuptial agreement that is carelessly worded or which was not filed properly can easily be challenged in court and potentially voided. Paperwork errors are the easiest errors to avoid, but the hardest to spot for those who are not trained in the law. That’s why it’s essential that an attorney at least review any prenuptial agreement beforehand.

Fraud and coercion

Among other things, a prenuptial agreement governs how property owned by both spouses will be divided if those spouses divorce. If, when drafting a prenuptial agreement, one spouse does not reveal all of his or her assets and debts to the other spouse, then the prenuptial agreement could potentially be challenged because it was entered into on fraudulent grounds. If one spouse doesn’t actually know how much the other spouse owns, then he or she cannot know if the prenuptial agreement they are signing is in their best interests. Likewise, if one spouse was coerced into signing the agreement or lacked the mental capacity to understand what he or she was agreeing to, then that agreement can be challenged.

Unfair provisions

Even if both spouses understood what they were agreeing to, there may still be grounds for challenging a prenuptial agreement if it includes provisions that are blatantly unfair to one party. If one spouse is awarded almost the entire marital estate then that prenuptial agreement will likely be considered too lopsided to be enforced. Also, prenuptial agreements generally cannot touch on issues related to child support since child support is an issue that must be decided in the child’s best interests rather than the parent’s.

Getting legal advice

The best way to ensure that a prenuptial agreement will be legally enforceable is by consulting with a family law attorney beforehand. An experienced attorney can help clients who are about to get married understand how a prenuptial agreement could protect their interests and how to draft an agreement that has the best chance of holding up in court.