Deciding to sign a prenuptial agreement before marriage is a major decision that often comes with significant legal considerations. A prenuptial agreement addresses issues that would only come up in the event of a divorce, assigning property and asset rights to each individual. Prenuptial agreements are a wise choice for anyone nowadays—rich or not. If you plan on owning property or having an income separate from your spouse, a prenuptial agreement can protect your individual assets in a divorce. Avoid these common prenup mistakes to ensure you fully protect your rights.
Failing to Make the Agreement Official
Before marriage, it can be difficult to imagine a time when your spouse will betray a mutual agreement you two currently share. Imagine, for example, you and your spouse agree that you will each only take what you came into the marriage with after a divorce. Stating that you agree to these terms is one thing, but putting it in writing in front of legal representation is another. Creating a “prenuptial agreement” on a napkin with no attorneys present, as was the case with Steven Spielberg and Amy Irving, will not hold up in court.
It may be hard to tell your spouse you want a real, legalized prenuptial agreement before marriage. Your spouse may take this as you saying that you anticipate a divorce, that you do not want him or her to share your assets, or that you do not fully trust him or her. However, being firm with your request is important to the future of your assets. Both parties need independent attorneys who can witness the voluntary agreement signing for a prenuptial agreement to be valid.
Coercing Your Spouse Into Signing
The courts will throw out a prenuptial agreement if a spouse can prove that someone coerced him or her into signing the document. Coercion can take the form of blackmail, threats, or simply undue pressure. If, for example, you wait too long to create and sign a prenuptial agreement, it can pressure you to sign the document in time for the wedding. The date has already been set and the invitations mailed, and you have to sign the agreement or call off the wedding. Avoid this type of coercion by ensuring the prenuptial agreement is signed at least one to three months before the wedding.
Including Unconscionable or Unenforceable Provisions
Always work with an attorney while creating your prenuptial agreement. An attorney knows what you must and must not include in the agreement in the eyes of the law. A prenuptial agreement must have full disclosure, with all information about you and your spouse’s assets. It cannot have any unconscionable provisions or those that are significantly one-sided toward one party. It also cannot have any unenforceable or unusual provisions, such as that one spouse must always do the laundry or maintain a certain weight. Any of these mistakes can weaken your prenuptial agreement and lead to the court throwing out the entire document.
Using Ambiguous Language
Your prenuptial agreement needs to be clear and concise, with no room for mistakes or misinterpretations in the future. The enforceability of any legal document depends on the wording of the agreement. Do not expect the courts to enforce a term of your agreement if the meaning is unclear or ambiguous. Seek help from an attorney to draft your prenuptial agreement to ensure the wording is accurate and precise.
Making Promises You Cannot Keep
If you promise something to your spouse, such as voiding the prenuptial agreement once you have your first child together, make sure you are willing to follow through with this. The court can interpret such promises as acts of fraud and invalidate your prenuptial agreement. Your spouse can argue that your promises coerced him or her into signing the prenuptial, invalidating the agreement.