Prenuptial agreements (prenups) can be a great tool for couples to use if they are thinking of getting married. A prenuptial agreement can help you establish the financial and property rights of you and your spouse in the unfortunate event of a divorce, including protecting a family business or securing your personal assets. However, prenups have to be drafted correctly to be enforceable. The exact legal requirements can vary by state, but here are the top 10 reasons why a prenuptial agreement might be invalid:
1. No Written Agreement: Premarital agreements must be in writing to be enforceable.
2. Not Properly Executed: Both parties must sign a premarital agreement in a timely manner before the wedding in order for the agreement to be considered valid. States have varying time requirements. For example, some states, such as California (under the Uniform Premarital Agreement Act), require you to sign well in advance of the wedding day.
3. You Were Pressured or Threatened: A premarital agreement may not be valid if one of the spouses was pressured by the other (or by his or her lawyer or family) to sign the agreement.
4. You Didn't Read It: If your spouse-to-be puts a bunch of papers in front of you, including a premarital agreement, and asks you to sign them quickly, the premarital agreement may not be enforceable if you sign it without reading it.
5. No Time For Consideration: A prospective spouse entering into a premarital agreement must be given time to review it and think it over before signing it. If the groom hands the contract and a pen to the bride just before she says, "I do," the agreement is probably invalid. For example, some states, such as California (under the Uniform Premarital Agreement Act), require you to sign well in advance of the wedding day.
6. Invalid Provisions: Although a premarital agreement can cover just about any financial aspect of the parties' relationship, it cannot in any way modify the child support obligations or child custody/visitation rights that either spouse would have if the marriage should end in divorce. Any other provisions of the agreement that violate the law would also be invalid. It is possible, however, that the court would strike the illegal clauses and enforce the remainder of the agreement.
7. False Information: A premarital agreement is valid only if it is entered into after full disclosure by both parties -- as to their income, assets, and liabilities. If one prospective spouse provides the other with information that is not true or does not fully disclose the information, the agreement is invalid.
8. Incomplete Information: Failing to provide pertinent information is as bad as providing false information, and it renders a premarital agreement unenforceable.
9. No Independent Counsel: Because their separate interests are at stake, both parties to a premarital contract should (and in some states must) be represented by their own attorneys, or the agreement will not be enforced.
10. Unconscionability: It's true that you can agree to give up your right to inherit from your spouse, which you would otherwise be entitled to do upon your spouse's death, even if he or she left you out of a will. You can sign away your right to spousal support if you should end up in divorce court, even if your spouse makes ten times as much money as you do. You can even agree that your spouse gets all of the property and you get all of the bills, if that is what you want to do. But if the agreement is so grossly unfair that one party would face severe financial hardship while the other prospered, the court is unlikely to enforce it. Basically, "unconscionable" contracts are generally found invalid, and premarital agreements are no exception.
Getting Legal Help with Your Premarital Agreement
A premarital agreement can help you feel secure that your assets will be protected in the event that your marriage doesn't work out. If you and your future spouse are considering a premarital agreement, you may want to consult with a local family law attorney to make sure it's in compliance with the laws of your state.