Prenuptial Agreements

Prenuptial agreements frequently come under attack when the parties are preparing to go through a divorce.  The three most common challenges to a prenuptial agreement are: (a) duress and coercion; (b) lack of independent counsel; and (c) failure to make a full financial disclosure.

What To Know

The first challenge, duress or coercion, is frequently raised by the spouse who claims that he or she was pressured or forced to sign the prenuptial agreement.  In many cases, a party is not given a fair opportunity to review the prenuptial agreement, but rather is rushed into signing the document only hours or days before the wedding.  In other cases, economic threats or subtle pressure is exerted upon a party to force her or him to sign a prenuptial agreement, effectively placing that party under duress or coercing the party to sign on the dotted line.

For example, it may be considered extremely unfair to present a prenuptial agreement to a party only days before the wedding, after 200 wedding invitations have been mailed, after the wedding dress has been purchased, after caterers and other facilitators have been paid.  One might argue, in such circumstances, that a party cannot fairly, rationally and reasonably consider a prenuptial agreement while facing the risk of losing an investment in an expensive wedding, and after inviting 200 friends and family to the event.

A lack of independent counsel is also a common reason for challenging a prenuptial agreement. The party who seeks to have a prenuptial agreement signed will generally have already hired a lawyer to write the document for him or her.  The party who is being asked to sign the prenuptial agreement should, therefore, retain her own attorney, independently, and without any assistance from his or her future spouse.  If the future spouse helps her find an attorney or hand-picks an attorney for her, then there is a risk that that attorney was not truly independent, and was not actually working for the person who sought his advice.  In fact, any attorney hired to review a prenuptial agreement prepared by another attorney should only be paid by the party who is seeking the review.  Anything that suggests that the attorney conducting the review was not completely independent could result in invalidating the prenuptial agreement at the time of the divorce.

A third common reason for challenging a prenuptial agreement is a lack of complete financial disclosure.  When a party prepares a prenuptial agreement to be signed by his future spouse, he must also generally provide her with a complete list of his assets and a statement of his financial condition.  Most states require such disclosures as a part of their statutory law.  If such a party fails to make a full disclosure, or makes a material misrepresentation or omission in the disclosure, it may constitute grounds to declare the prenuptial agreement null and void at the time of the divorce.

If you are trying to challenge a prenuptial agreement, the three reasons set forth above are key areas to explore.  On the other hand, if you are trying to enforce a prenuptial agreement, you will want to ensure that you can overcome any objections relating to each of the three areas noted above.  An attorney can help you develop the evidence necessary to sustain or overcome a prenuptial agreement.

If you are seeking legal help to prepare a prenuptial agreement, then you should be keenly focused on the three trouble spots noted above.  The prenuptial agreement should not only be written properly and effectively to address all of the essential issues, but it should be presented to the other party well in advance of the wedding ceremony, providing her or him with ample opportunity to review the document, ask questions, retain their own attorney, and make any changes that are necessary.  A full financial disclosure should accompany the prenuptial agreement and should be updated as necessary before the document is signed.

Many states have adopted a uniform law to address these issues and other concerns.  The Uniform Premarital Agreement Act (UPAA) permits parties to enter into a pre-marital contract that deals with their property, regardless of when it is acquired or where is it located, and to deal with the disposition of that property upon separation, marital dissolution, death, or the occurrence of any other event.  a pre-marital agreement under the UPAA may also deal with spousal support, and how it can be modified, and the making of a will, trust or other arrangement to carry out the provisions of the agreement.  It can also deal with the ownership rights in and disposition of death benefits from a life insurance policy.  In fact, the UPAA is virtually unlimited in granting authority to spouses into any contract that does not violate public policy or otherwise violate a law.

Under the UPAA, however, a pre-marital agreement will not be enforced when one of the parties did not execute the agreement voluntarily, or if the agreement is deemed to be unconscionable when it was executed.  An agreement will be deemed unconscionable if the party signing it was not provided a fair and reasonable disclosure of the property  or financial obligations of the other party, did not voluntarily and expressly waive, in writing, any right to the disclosure of property or financial obligations by the other party, and did not have,  or reasonably could not have had, an adequate knowledge of the property or financial obligations of the other party.

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