A prenuptial agreement, commonly known as a prenup, is a written private contract or agreement between a couple before their marriage or civil union. The legal document outlines the fate of their assets in case the marriage or union comes to an end, whether from a divorce or death. It enables the two parties to control the legal rights acquired after marriage and supersedes the marital laws that would otherwise take effect upon dissolution of the marriage.
Different states have their own laws concerning enforcing and validating prenups. The state laws that apply depend on several circumstances, including the location of the marriage and the couple’s residence. Let’s review some of the primary aspects of a prenuptial agreement.
Here’s What You Need to Know About Prenuptial Agreements
A prenup is only valid if entered into before the marriage, and generally, there are other elements required to validate this agreement:
- Voluntary execution by both parties, who must not be under any form of coercion when signing the contract. The signatories must also have the mental capacity to be able to enter into any other legal contract while signing the prenuptial agreement.
- Full disclosure must be provided. This covers financial information, including outstanding debts and the assets either party owns. Any form of fraud can invalidate a prenuptial agreement.
- Legal counsel for both parties has to exist or be waived if one does not need a lawyer. This will ensure that everyone is fully informed of the legal aspects or repercussions of the prenup.
- The prenuptial agreement has to be fair. In legal terms, it cannot be unconscionable. This means that the terms are not in favor of one party at the expense of another. This largely varies depending on the various circumstances of the marriage or civil union.
- In some jurisdictions, both parties must wait for at least seven days after the reception of the agreement to append their signatures.
Are Prenuptial Agreements Legally Enforceable?
Prenuptial agreements are recognized in all states and are enforceable if they have been drafted in line with state and federal laws. In the event that your marriage comes to an end and is no longer tenable, the terms of the prenuptial agreement may need to be enforced by a court of law if there is a dispute among the parties.
It is very important to get in touch with a qualified divorce lawyer when it comes to prenup enforcement since it can be a tricky business. Seeking legal counsel during the drafting and signing of a prenup agreement will also ensure that you understand its terms, which are key in determining its enforceability. An informed attorney will also ensure that the prenup terms do not conflict with local state laws that would render the agreement null and void to the extent of those inconsistencies.
The judge will have to decide whether the document is legally valid, based on its terms, and therefore enforceable. Both parties will likely have their own lawyers, each representing their client’s interests, but if the judge deems the prenup as binding to both parties, he or she will require the provisions to be carried out as per the agreement.
Keep in mind that there are circumstances under which a prenup is not enforceable. If the agreement was entered into without considering the factors stated above, it is generally not enforceable by a court of law. Also, child support issues cannot be stated explicitly on a prenup, and neither can a spouse be punished for a fault they committed, notwithstanding if it was the reason the marriage crumbled.