How to Ensure That Your Prenuptial Agreement is Valid

 

No one contemplates divorce when marrying the person they love and wish to spend the rest of their life with. However, when you’re getting married, as a couple, you must face multiple issues that can affect you both immediately in the future. Therefore, many couples draft a prenuptial agreement to safeguard their assets and get protection for custody and other issues if their marriage ends in divorce.

If you’re planning a wedding and want a prenup with your partner, discuss with them beforehand. You also want to ensure that your prenuptial will be legally valid and its terms can be enforced if you or your spouse decide to get divorced.

Here’s what you need to know:

What Is A Prenuptial Agreement?

A prenuptial agreement is a legal document that establishes the financial and property rights of spouses if their marriage ends in divorce. They also go by other names like prenuptial contracts, premarital agreements, or antenuptial agreements.

A prenup essentially lets you decide who gets what if you divorce. In this document, you may leave items to your heirs or children or decide on estate planning with your spouse and who gets what real estate property.

It helps you divide assets and protect your business property with an objective mindset. Prenups can also help you determine child support or alimony payments and their due dates. It also determines the kind of bequests you leave to your spouse in the will.

Getting a prenuptial agreement or having this discussion with your potential spouse may seem unpleasant now, but it can save you a lot of heartache and money down the road if things don’t work out.

Should You Get A Prenup?

If you’re getting married and asking yourself whether you should get a premarital agreement, you probably should. It can be worth the discomfort and difficult conversation with your spouse compared to its value in the future. It can also open lines of trust and encourage honest conversations with your partner regarding your finances.

It'll also be incredibly useful if you have significant pieces of property you don't want to count as potential property. It can include anticipated income and inheritances.

Usually, couples with huge wealth and age differences who’re remarrying have prenups to protect their interests.

Therefore, if you have issues, as mentioned above, it might be worthwhile to draft a prenup and discuss this with your family lawyers. If you have lifetime assets and debts ahead of you, you're a good candidate for a prenuptial agreement.

When Is A Prenuptial Agreement Invalidated?

A prenuptial is typically signed before the marriage and comes into effect after you've married your spouse. Both couples must sign the document, and it should be in writing. However, a prenuptial agreement may be considered invalid in the following circumstances:

The Agreement Has Ridiculous Provisions

Most divorce court judges are disinterested in the peculiarities of individual contracts, especially prenuptial agreements. However, there may be some factors that may raise a few eyebrows. For example, your prenup mentions no child support after the dissolution of your marriage for your children if you have any during it. In this case, the judge may be partial to you and your children and throw the prenup out.

Also, any other ridiculous provisions about visits of in-laws, sexual relations frequencies, color, hair, weight gain, etc., may not likely hold up in court. So be prepared for that eventuality.

You Signed Without Proper Legal Representation

You and your partner must have independent and separate legal counsel to prevent signing anything under duress without understanding the provisos if you both have agreed on a prenuptial agreement.

If you're pressured to sign something your wealthy fiancé or his family have drawn up for you before your wedding day so you can marry your partner, this agreement may not be ironclad, and you can challenge it in court if your spouse wants out of the marriage in court.

Therefore, always have a legal counsel by your side before signing a legal document, especially your prenup, because there may be a chance of invalidating it.

The Paperwork Needs Proper Filing

Your lawyer needs to dot the i's and cross the t's to improve the enforceability of the prenuptial agreement. Every legal contract requires the same vigilance and filing. However, careless errors can render your prenuptial agreement invalid and less than airtight. That's why you must hire experienced lawyers to handle this for you and protect your rights and best interests.

Lack Of Mental Capacity

Both spouses must be sober and have all their faculties before signing the agreement. If you can prove that you were coerced or lacked the mental capacity to understand the prenup when asked to sign it, you can challenge the validity in court.

For example, if you were under the influence of drugs or ill when your partner asked you to sign the agreement, the judge may find it a sound reason to invalidate it.

Unconscionability – If Its Grossly Unfair To One Party

A prenup may be considered invalid if it is extremely and unjustly unfair to one spouse. The court may hold your prenup unconscionable if you or your spouse did not provide the other with reasonable disclosure of your assets, debts, or other financial conditions. It might be hard to prove validity if you both did not waive the right to full financial disclosure. To ensure that your prenup is valid, you must fully disclose the financial assets you and your partner own, any outstanding debts, and all income sources.

However, if your spouse didn’t do their due diligence, you may have grounds to have the prenup thrown out now that you’re getting a divorce.

Duress Or Coercion – You Both Must Voluntarily Sign

You and your spouse must voluntarily sign the prenup without guilt-tripping, manipulating, coercing, or threatening the other person. If you do, the agreement will be deemed invalid. The agreement will be invalid if you present the prenuptial agreement on the day of your wedding and refuse to get married to your spouse if they don't sign. It can be seen as coercion.

To avoid this issue, contact your lawyer and draft this agreement well before the wedding. Allow your partner time to consult with their lawyer to ensure they understand the agreement's terms and are satisfied with the contract.

How To Make A Valid Prenuptial Agreement

If you want your prenuptial agreement to hold up in court, here are some precautions you must take:

The Prenup Should Not Be Amended After It’s Signed

Don't add any extra clauses or language after signing the document.

Your Must Present, Negotiate, Discuss, Draft, And Sign The Prenup After Comprehending The Consequences And Implication Of Signing The Agreement

If the document is signed too close to the wedding day, the chances of its invalidity rise. One might argue that the document was signed under duress and without ample opportunity to fully consider the ramifications of signing the document. If you signed just hours before the marriage, you may not have had time to fully read or understand the agreement and its effect on your future.

Be In The Right Mental Capacity To Sign

If you or your partner sign under the influence of drugs, alcohol, or coercion, your agreement won’t hold in court. Therefore, be mentally present when you sign the document. You can even have a witness present to corroborate that no one was compromised when you or your partner sign the document.

Ensure All Information In The Prenup Is True

Disclose all your liabilities and assets so everything corroborates and is backed up by documentary proof that your prenup is legally correct in court.

Disclose Your Financial Situation

As mentioned above, you must disclose your financial information for your prenup to hold up in court. Otherwise, the agreement may be thrown out. You and your spouse have a fiduciary duty to one another to deal with each other fairly and honestly. So, if any of you fail to disclose your assets, they'll suffer at the hands of the court.

The Agreement Should Be In Writing

Oral prenups are not valid. If you both decide to get a prenup, write everything or have someone draft it up for, ideally, your lawyers.

Contact Experienced Family Lawyers To Draw Up Your Prenuptial Agreement

If you’re looking for experienced family lawyers in Mississauga, Nanda & Associate Lawyers can help you. They have extensive experience with child custody issues, parenting plans, joint divorce cases, simple divorce cases, drafting marriage contracts, separation agreements, and marriage contracts.

Reach out to them today if you need legal counsel from commercial real estate lawyers, immigration lawyers, and family law consultants.

 

Disclaimer: This article is only intended for educational purposes and shouldn’t be used as a substitute for legal advice.