How to Make Sure Your Prenuptial Agreement is Enforceable
The decision whether or not to sign a prenuptial agreement is certainly a personal one, and while there are strong valid legal reasons for doing so, ultimately the choice is yours. However, if you do decide that signing a prenuptial agreement is a good idea for you, steps should be taken to make sure that your prenuptial agreement is valid and enforceable.
Problems With Prenuptial Agreements
Most problems with enforcing prenuptial agreements arise from how the agreement was signed, not what is in it. Procedure and timing are vital to avoid legal challenges to the agreement.
One major problem is timing. Parties should have sufficient time to review proposed agreements. There is no bright line test to determine how much time is enough or not enough for a party to reasonably consider and negotiate a prenup.
Despite there being no absolute legal time limit, handing your soon-to-be spouse a prenup 4 days before your wedding is a recipe for disaster, as is handing it to them and demanding a response within a short period of time.
Proposed prenuptial agreements should be accompanied by financial statements–a Florida Financial Affidavit used in divorce proceedings should suffice. Any other information you provide, such as bank statements, can only help the agreement’s enforceability later on. Parties should be 100% truthful and accurate in the information provided in financial affidavits.
There is a narrow exception to this disclosure rule, when a soon-to-be spouse knows or should know about the other’s finances, but that’s not an exception you want to rely on.
Hiding information will not help, but rather, could hurt your case. A combination of an agreement being very partial to one party, and a lack of full disclosure, are often enough for a judge to find a prenup unenforceable.
Fraud and Duress
There should be no fraud or duress in the process of reviewing and considering the agreement. Threats not to marry someone if he or she does not sign are not considered duress and will not invalidate a prenup. However, the more threats or pressure a party puts on the other to sign, the higher chance that a court may find undue pressure or duress.
You should do your best to try to make the agreement somewhat fair to both sides. Judges won’t rewrite agreements or invalidate them just because one spouse is getting a better deal than the other. However, extraordinarily lopsided agreements (such as one that leaves one spouse penniless and the other with pretty much all of the marital assets), combined with duress, coercion, or other factors, could lead to a judge invalidating the agreement or amending it.
You may also want to consider getting separate attorneys to review proposed prenuptial agreements. When both spouses have the same attorney, there is no confidentiality between the spouses, not to mention the risk that the attorney will have a conflict of interest. Having the same attorney can also strengthen a party’s claim that he or she was pressured or mislead into signing the agreement.
Our Tampa prenuptial agreenent attorneys at the Pawlowski//Mastrilli Law Group can help you negotiate a prenuptial agreement, or help you enforce one. Contact us today for more information.