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Reviewing your prenuptial agreement before divorce

A well-crafted prenuptial agreement can save couples thousands of dollars and months of frustrating time when divorce is on the table. However, simply having a prenuptial agreement in place is not a guarantee of a smooth, relatively quick divorce process. If the agreement has weaknesses, one or both spouses may have room to argue that some or all of the agreement is invalid, which can create opportunities to renegotiate terms.

Spouses who see divorce on the horizon may find it tempting to simply pull the prenuptial agreement out of the filing cabinet and start packing up their personal belongings. Instead, it is wise to review these documents to understand any weaknesses that may cause problems as you build your divorce strategy. If you anticipate a divorce in your near future, a strong strategy helps keep your priorities in line and allows you to focus on protecting your rights in Washington, D.C., and the ones you love during a difficult personal season.

Is your prenuptial agreement properly prepared?

The strength of a contract depends on the detail and attention paid when it is first created and negotiated. If your prenuptial agreement is not properly prepared and executed, this provides opportunities for you or your spouse to challenge some or all of its terms.

Courts may invalidate an agreement, or portions of it, if it:

  • Is not put in writing
  • Was not executed properly at the time of the signing
  • Includes false information
  • Includes incomplete information

Any technical inconsistencies in a prenuptial agreement are opportunities to challenge the agreement's validity. If you want to challenge some or all of the agreement, these may prove useful. If you hope to follow the agreement as it is, it is important to understand these issues ahead of time, in case your spouse chooses to focus on them for their purposes.

Is the agreement valid?

Even if a document does not contain technical mistakes and omissions, courts may take issue with the terms and the way spouses reached the agreement. A court may not choose to honor a prenuptial agreement if:

  • A spouse signed the document under pressure
  • A spouse was not allowed time to consider the terms
  • A spouse signed the document without reading it
  • A spouse did not have time or access to review the agreement with independent counsel
  • The agreement contains illegal or unconscionable provisions

While the law gives couples great flexibility to create agreements that speak to their individual priorities and needs, a prenuptial agreement does not override the law. For instance, courts do not allow couples to outline child custody issues in a premarital agreement. If an agreement contains terms that a court does not allow, the court may invalidate some or all of the contract.

Reviewing your prenuptial agreement carefully can help you clarify your expectations for your divorce and remove many of the stresses and pressures that divorce presents. With a clear legal strategy in place, you can approach your divorce with confidence and the freedom to focus on the things that matter to you while you look forward to a fresh new season of life.

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