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Is your prenuptial agreement really valid?

For many high-net worth individuals or couples, a prenuptial agreement is an obvious and important part of planning for a marriage. Like an emergency parachute, the property division aspects of a prenuptial agreement are protections that many couples hope they never have to use, but are very glad to have if divorce comes knocking.

However, simply creating a prenuptial agreement is not always enough to keep a person's property safe in the event of divorce. Prenuptial agreements, like all contracts, must withstand scrutiny if challenged, and a poorly constructed prenuptial agreement may only appear to offer protection until it faces such a challenge.

It is not always easy to know whether your prenuptial agreement is as sound and sturdy as you hope without professional legal guidance. If you have concerns about the validity of your prenuptial agreement and its ability to protect your assets during divorce, an experienced divorce attorney who understands the complexity of high-asset divorce can assess the agreement and help you anticipate any potential problem areas.

Was the agreement created properly?

Even if the contents of a prenuptial agreement pose no threats to a prenuptial agreement, if you and your spouse did not create the agreement properly it may not hold up in court. If, for instance, you or your spouse did not have time to carefully consider the terms of the agreement, or signed the agreement under pressure, a court may toss it out.

One party may write a prenuptial agreement to protect themselves and present it to the other party to sign shortly before the wedding. Even if the other party agrees and signs the document, a judge may determine that the other party did not have proper time and representation to consider the agreement's terms and make any modifications. In this instance, the judge may find that the agreement is unfair and refuse to uphold it.

Is the agreement unfair or illegal?

Other common issues that plague otherwise strong prenuptial agreements are grossly unfair terms or terms that are not legal to include. If a judge considers the terms and believes that some aspect of the agreement is exceptionally unfair to one party, the judge may invalidate that particular portion of the agreement, or may do away with the agreement altogether.

In general, courts rarely uphold prenuptial agreements that are terribly unfair to one party, even if both parties willingly agree to the terms. Grossly unfair, or "unconscionable" terms often send up red flags for a judge, drawing more scrutiny on the agreement as a whole.

Similarly, if an agreement includes terms involving illegal acts or terms that outline areas that courts do not allow in prenuptial agreements, the agreement may prove invalid. Some of the most common issues where this arises involve child custody or support terms. In general, parties are not allowed to predetermine child support or custody issues, because that is the purview of the court.

However you choose to resolve your prenuptial agreement problems, be sure to consider all of your options and use the tools you have available to protect your rights and priorities as you move forward.

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