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Prenuptial agreements are a complicated but important part of marriage law. They can help to protect the assets of both individuals in the event of divorce, and can help to protect spouses from debts incurred during the marriage.
Unfortunately, even a well-drafted prenuptial agreement is not foolproof. Certain circumstances can lead a court to throw the agreement out later. This quick guide will cover five reasons that a court may nullify the agreement both spouses signed, reasons that catch many couples off guard.
Top 5 Inclusions that can Void A Prenup
1. Failure to Disclose Full Financial Situation
Hiding or devaluing assets while drafting a prenuptial agreement can lead to big problems down the road. Most couples know that these actions can have devastating effects during the actual divorce proceedings, but very few know that the same holds true while drafting the initial agreement itself. It pays to mind the details very carefully. Don’t forget to disclose potential earnings as well, including expected inheritances and other grey-area issues.
2. Attempting to Restrict Access or Support to Children
Prenuptial agreements cannot undermine the well being of any children, whether born before marriage or during the marriage. Couples cannot restrict access to child support, visitation, custody, or any other matter that could affect the child’s well being. Courts will not honor anything that attempts to undermine the rights of the child – the law acknowledges that every child has the right to have a relationship with and support from a fit parent.
3. Decisions that have nothing to do with Finance
Prenuptial agreements have a very specific purpose. They exist to specify how a married couple will divide financial assets and property in the event of divorce. Except in a very few cases where certain actions (such as adultery) can affect the split of these assets, a prenuptial agreement is not intended to be used as a way to control the non-financial actions of either spouse during the marriage: the division of chores, the ownership of pets, the name taken after marriage, etc.
4. Waiving the Right to Alimony
There are a few ways to waive the right to alimony, but unfortunately, there are just as many reasons for a court to overturn the waiver. A spouse that is legitimately unable to self-support would often find ample reason to challenge the waiver, or to seek more alimony than the prenuptial agreement specifies. These agreements are far from foolproof and depend more on the circumstances of both spouses (not just after the divorce – sometimes agreements undergo revision even decades later).
5. Signing too Close to the Date of Marriage
Drafting or finalizing the agreement too close to the date of marriage is risky. The courts may later interpret it as evidence of coercion. While the date of the finalization is usually not, in itself, a justifiable reason to throw out a prenuptial agreement, it could end up being one of the deciding factors. Protect yourself by drafting and finalizing the agreement well ahead of time and keep careful record of its changes and development.
Taking steps to Protect your Prenuptial Agreement
It is extremely important for each spouse to have an independent attorney on hand for legal advice while drafting and finalizing the prenuptial agreement. A one-sided agreement often serves as a reason for the courts to dismiss the prenup, because it encourages divorce or treats one spouse unfairly. Take some time to visit DivorceLawyersOceanside.com for more information about prenuptial agreements and to contact an attorney with extensive experience in prenuptial law.
Even if you are confident in the validity of your prenuptial agreement, it never hurts to seek further information. Constant changes to law and public policy can mean that relying on technicalities is difficult to accomplish. It is important to draft a truly fair, truly transparent prenuptial agreement in accordance with matrimonial law.