Today, Prenuptial Agreements are very popular between individuals who have been married before or those with meaningful estates. The main advantage is knowing ahead of time what will happen if the marriage ends. Some provisions however, such as those relating to custody and child support, will not be enforceable, even if a Prenuptial Agreement lists the parties’ desired outcome. Courts always have the authority to look after the best interest of children.
You Should Be Aware: however, that many Prenuptial Agreements that have been prepared and executed from purchased forms on the Internet can be successfully challenged because most forms do not address what needs to be covered or what can be covered. Plus, how they were agreed upon can be more important than what was agreed upon.
A Prenuptial Agreement Can Be Attacked As Follows:
- Did the less-propertied spouse receive independent legal advice?
- Was there full disclosure of assets and their values?
- Beyond these first two questions, inquires will turn to the process itself, seeking to determine if the process was “fair.” While each case is different, a few questions are most common. When was the Prenuptial Agreement presented to the less-propertied spouse? Two months before the wedding or twenty minutes before the wedding? How financially savvy is the less-propertied spouse? High school graduate or CPA? Were the assets valued? When? By whom? Were the valuations significantly understated? Who prepared the document? How one-sided was the deal at the time it was signed? How one-sided was the deal at the time of the divorce? How is the less-propertied spouse going to live after the divorce?
Prenuptial Agreements can be redone after the marriage if the circumstances change or the parties change their minds about a particular provision. There can even be a “sunset provision,” dictating that the agreement expire after a certain period of time. In any event, the Prenuptial Agreement should spell out the procedure to be followed if both spouses want to make a change. If these circumstances apply to your situation, definitely get expert legal help. Neither spouse should try to make these types of changes on his or her own.