Determining whether or not your prenuptial agreement will stand up in court is not complicated if you take time in advance to make sure it follows some important guidelines. The first, and most important, thing to remember is that the agreement needs to be in writing and it needs to be notarized. In addition to this major requirement, the courts will need to determine the following facts.
- Was the signing coerced? Both parties need to have signed the agreement willingly, without fear or feeling pressured to do so.
- Did both parties read it? Asking that the agreement is signed without one of the parties reading it invalidates the agreement. Both must be completely aware of what they are agreeing to in advance. You cannot rush your spouse into signing an agreement.
- Does the prenup include illegal content? You cannot include items in a prenuptial agreement that violate state law. For example, foregoing alimony during a divorce is okay because the party affected by it signs the agreement. However, by law, both parents are liable for a child’s care, so you cannot decide to forgo child support.
- Were both parties honest? If one party doesn’t reveal all of their assets or lies about their value, the agreement can be considered void.
- Did the parties share a lawyer? Conflicts of interest can arise if both parties are represented by the same counsel.
- Is the agreement fair? Finally, the courts will consider if the agreement is fair. For example, an agreement that leaves one person destitute after spending years contributing to the marriage would be considered unfair. The courts will take into consideration what an individual needs to live and may modify the agreement to reflect this.
Final thoughts
If both parties took the time to read and agree with the terms of the prenuptial agreement, and the agreement was entered into willingly and with total disclosure by both parties, the basics have been fulfilled. A final check of the agreement to verify it meets all legal aspects should be completed, and both parties need to sign and have the paper notarized. Only when all these conditions have been met can you be fairly assured of an agreement that will hold up during divorce.
