You may think prenuptial agreements are to prevent you or your spouse from getting anything in a divorce. From this perspective, people usually think the lawyer serves one spouse without protecting the other. Movies and television shows give a great deal of misinformation about prenuptial agreements. A big part of this is the idea of an “ironclad” prenup.
The truth is, there is no such thing as an ironclad prenup. While some lawyers sell themselves by claiming to offer this, the law provides protections for both spouses. A prenup must meet standards of fairness and honesty to be valid. Whether you are trying to enforce or avoid a prenup, an experienced attorney can help ensure you are protected in a divorce.
Honesty in Creating the Prenup
For a prenup to be enforceable, you and your spouse have to be honest when you draft it. Obviously, you should not lie about what you have or where it is located. If you want to enter a prenuptial agreement, you must disclose what you are protecting. A spouse who can show they agreed based on false information may be able to convince a Judge to invalidate your agreement.
You also cannot withhold information. This is a case where the truth must involve the whole truth. An agreement based on incomplete information about finances will never be anything close to an ironclad prenup. Dishonesty, whether by lie or omission, will void the agreement.
This will include disclosing everything you own, whether personal assets or business interests or even debts. The prenup can help keep a business from being divided and help you keep it going after the divorce. If you do not include or disclose it, though, your prenup could fall apart.
Fairness of Terms
Even when you are honest with each other, the terms must be fair. An unconscionable agreement can be overturned. If one of you would be destitute, the agreement may be overturned. A court will generally not enforce an agreement if doing so would ruin one of your lives.
This can also include unnecessary demands. Forcing one spouse to agree to something he or she does not want may prevent enforcement. No one can legally be coerced into signing a prenup. The agreement will not stand if you show that a spouse, attorney, or family member forced you to sign.
Finally, both sides should have fair representation during the negotiations. An otherwise ironclad prenup that is created when one person did not get legal advice will be challenged in court and likely thrown out. You and your spouse should both have the benefit of counsel. This is another basic fairness issue that courts will weigh.
Legality of the Agreement
There are some terms you cannot include in a prenup. You cannot agree in a prenup to terms about child support. Similarly, child custody falls outside of what a prenup can cover. What looks like an ironclad prenup may fail if it includes these kinds of terms.
When you are drafting a prenup, you need experienced legal counsel to help create an enforceable agreement. There’s no such thing as a truly ironclad prenup. Still, as long as the terms are fair, relate to the areas an agreement can cover, and you both have legal counsel, you can create a prenup with conditions that should stand up to challenges. Be fair to yourself and each other and develop the right agreement that will be enforceable now and in the future.
In the event of a divorce, your attorney will review the validity of the prenup.
If you’re ready to get a prenup and you want to make sure it’s enforceable in the event you need to divorce, contact Ogborne Law for help.
Engaging with an attorney to protect your family is never an easy step. Whether you need to protect your family from the unthinkable or restructure your family through collaborative divorce, we’re here to help. When you’re ready to schedule a consultation with Michelle Ogborne, please visit the scheduling page to get started.