A prenuptial agreement is designed to protect assets and to prevent litigation in the event of a divorce. Unfortunately, prenuptial agreements themselves are often subjected to challenges when a separation occurs. Here are four things you should do before signing a prenuptial agreement.
- Don’t wait until the last minute before the wedding date to present the document to your future spouse. Although the law does not require there be any waiting period before signing a prenuptial agreement, a party may later claim that they were pressured to sign right before the wedding.
- Both parties should have attorneys. Again, this is not a legal requirement, nor is the failure to have a lawyer a basis to set aside a prenuptial agreement. But it does take away a lot of other arguments that the spouse may have about duress, unfairness, coercion, etc., that are often raised in litigation over these agreements.
- Disclose and list all assets as part of the agreement or include a clear waiver of disclosure of all additional assets not listed. The lack of disclosure or a waiver of disclosure does not automatically invalidate an agreement alone, but they can be grounds to set aside an agreement if certain other claims are raised related to the fairness of an agreement.
- Clearly identify property that is to be separate, property that is to be marital, and how any changes in the form of property during the marriage affect the classification of the property.
These steps are proactive measures that you can take to anticipate the most common arguments that are raised when a prenuptial agreement is challenged in court.
