How do I make sure my prenuptial agreement will stand up in Court?
When looking to hire an Orlando family law attorney to draft your prenuptial agreement, it is important that your lawyer is familiar with legal arguments often used to challenge the validity of a prenuptial agreement. Prenuptial agreements are often challenged as part of a subsequent divorce. However, by including specific provisions in the agreement, you can help ensure that the prenuptial agreement will be upheld in court. Here are some of the most common issues that should be addressed when entering into a prenuptial agreement.
1. Give a full and complete disclosure of the assets.
A prenuptial agreement is only valid if both parties provide full financial disclosures. The intent of a prenuptial agreement is that the parties are entering into a binding contract that will control if they divorce. However, the parties are unable to make an informed decision without full financial disclosures. This is one of the most common challenges to a prenuptial agreement. Therefore, it is important to attach financial disclosures as part of the prenuptial agreement to prevent claims that full financial disclosures were not made. We recommend attaching financial affidavits to the prenuptial agreement and having both parties initial each page. This helps to ensure that both parties are fully informed regarding the financials and cannot later claim that he or she was not presented with a copy of the financial information.
2. Ensure that both parties have access to legal counsel.
Both parties to a prenuptial agreement should have separate and independent legal counsel. Just like in a divorce, one attorney cannot represent both parties. Although the parties may agree regarding the terms of the prenuptial agreement, their interests are still adverse. Without both parties having legal counsel or the opportunity to seek legal counsel, one party may allege that they were coerced or under duress when entering into the prenuptial agreement. Typically, if one party is the breadwinner and does not have the funds to retain an attorney, an adequate budget will be allocated in the prenuptial agreement for the other party to seek the counsel of an attorney. This helps to ensure that the parties are entering into the agreement freely and voluntarily with legal representation. Although you are not required to have an attorney review your prenuptial agreement, it is recommended that both parties have the ability to do so in order to help avoid later challenges to the agreement.
3. Present the agreement to your spouse well in advance of the wedding.
It is important to present your spouse with the prenuptial agreement well in advance of the wedding and to document in the prenuptial agreement when your spouse received the agreement. A spouse could challenge the prenuptial agreement by stating that they did not enter the agreement voluntarily, that they were under duress when the entered into the agreement, or that he or she felt coerced to sign the agreement. A common argument when challenging a prenuptial agreement is that the agreement was presented shortly before the wedding and that all of the guests had been invited, the wedding was paid for, and the spouse felt pressured to enter into the agreement because he or she did not want to cancel the wedding at the last minute. Clearly stating in the prenuptial agreement when the agreement was presented to the spouse and when they executed the agreement will help to avoid litigation of this issue. We recommend that the prenuptial agreement be fully executed at least 30 days before the marriage.
4. Make sure the terms of the agreement are clear.
Another common challenge to prenuptial agreements is that the language of the agreement is unclear or ambiguous. A trial court’s interpretation of a prenuptial agreement is governed by the law of contracts. Where a contract is clear and unambiguous, it must be enforced pursuant to its plain language. When entering into a prenuptial agreement make sure that the language is clear as to the intent of the parties. Additionally, if the language is unclear, it may be construed against the drafter. It is always a good idea to have a trusted friend or confidant review the agreement as well to make sure that the language makes sense to them and is easily understood. If there are any uncertainties, it is a good idea to make sure they are clarified in the agreement.
5. Do not include unreasonable or unenforceable provisions.
Courts are permitted to examine whether the provisions contained within a prenuptial agreement are reasonable. If the court finds that the provisions are not reasonable, given the circumstances of the parties, the court could invalidate the agreement. Additionally, there are only certain aspects of a divorce that may be addressed through a prenuptial agreement. For example, you may not negotiate timesharing or child support of a minor child. If a prenuptial agreement contains numerous provisions that are unenforceable, the prenuptial agreement as a whole could be subject to challenges as being unconscionable.
6. Have the agreement witnessed and notarized.
It is important that each signature to a prenuptial agreement is witnessed by two witnesses who are disinterested parties and signed by a notary. By doing so, this helps to ensure that there are no claims later made that the signatures on the document are fraudulent. Additionally, if the prenuptial agreement contains any provisions that affect your will, the agreement must be signed with the same formality as a will. Further, some individuals are now videotaping the execution of the prenuptial agreement, which makes the agreement less vulnerable to attack. For example, if the agreement is ever attacked in the future, the videotape can be entered into evidence to show that the parties actually executed the agreement and that they were not coerced or under duress at the time. Finally, we recommend that the parties initial each page of the agreement and all attachments, so that there can be no confusion as to whether the parties agreed to all of the same provisions.