Prenuptual Agreements– Requirements
Requirements for a premarital agreement
The basic requirements of a premarital agreement are:
- The agreement must be in writing;
- The agreement must be voluntarily signed;
- There must be full and fair disclosure of all terms before signing;
- There must be full disclosure of all assets and
- The agreement must be executed before the marriage.
Because a prenuptial agreement is a contract, it is subject to contract law. However, unlike a typical contract, there is a duty to disclose. To protect your prenuptial agreement from a legal challenge, you must be able to show that you provide your spouse with full disclosure of the legal ramifications of signing the agreement.
The best way to prevent a challenge is for both parties to be represented by counsel.
Another best practice for establishing full disclosure is providing a reasonable time to review the proposed agreement before the wedding. It is best not to present the proposed agreement shortly before the wedding ceremony. The better practice is to provide your future spouse with a draft of the prenuptial agreement long before the wedding. Nevertheless, prenuptial agreements signed on the wedding day have been enforced.
Limitations
Prenuptial agreements are not enforceable to the extent they cover issues relating to the children, such as custody and visitation. A Judge must decide matters involving children based on the children’s best interests at the time of the divorce.
There are several ways that a prenuptial agreement can be attacked in court. These include waiver, involuntariness, unconscionability, and a failure to disclose assets. Virtually any traditional common law defense to the enforceability of a contract may be raised to defeat the terms of a prenuptial agreement.
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Our lawyers have the experience and discretion to help you contractually protect your personal assets in the event of a divorce. To discuss your specific situation and options, contact us by email or call 601-957-3101.