Potential spouses enter into prenuptial agreements to determine their property rights during a marriage and to protect their property rights in the event of a divorce or death. Prenuptial agreements provide an advantage of protecting separate property, taking care of tax considerations, and preventing long and contested divorce. Prenuptial agreements are great, but not all of them actually work when it comes to using them.

Basic Requirements

To be valid, a prenuptial agreement must:

•  be signed by both spouses;

•  be accompanied by a complete disclosure of all assets, income and debts of each spouse;

• allow sufficient opportunity to consider the provisions of the agreement and obtain separate legal advice before signing;

• not be the product of fraud or duress; and

• be entered into freely and voluntarily.

Voluntariness

The prenuptial agreement is only valid if it is entered into voluntarily, i.e., if she thought she was signing a birthday card, or she didn’t know she’s giving up all rights to property, the agreement will not be valid.

Disclosure

If a spouse did not reveal the true extent of his financial well-being, the agreement might be unenforceable. For example, where she didn’t tell her fiancé that she just inherited an estate, and made him sign a prenuptial agreement.

Public Policy

A prenuptial agreement which violates public policy will not work. Examples of this are: an agreement which mandates the parties to get divorced in 5 years, or an agreement which requires a spouse to procure illegal drugs for the other spouse. As a more common example, a prenuptial agreement will not work to limit child support. Most courts uphold a prenuptial agreement which prohibits spousal maintenance.  

No Attorney

Not being represented by an attorney can work as an excuse of not having opportunity to consider agreement. For that reason, I do not recommend giving a prenuptial agreement for signature to an unrepresented future spouse.

To sum up, most prenuptial agreements will do their job, but you have to take adequate precautions.

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