These days, prenuptial agreements are much more common than they were for many years, and a growing portion of couples choose to protect themselves and each other before they marry. From a legal perspective, almost all couples benefit from a fair prenuptial agreement, whether they realize it or not.

When a couple uses a prenuptial agreement properly, they can remove several types of strain on their relationship and avoid messy conflicts if they choose to divorce later on.

However, simply creating a prenuptial agreement is not enough to avoid all conflicts during divorce. Many agreements are not airtight, and careful examination may reveal weaknesses that invalidate some or all of an agreement. If you face divorce and have a prenuptial agreement, make sure that you understand exactly what it covers and what it does not, so that you can keep your rights and priorities secure throughout the divorce process.

Reasons to challenge a prenuptial agreement

For a prenuptial agreement to hold up to scrutiny, it must meet several standards. First, the document must be properly assembled and executed. A prenuptial agreement must be:

  • Put in writing
  • Considered and signed before the marriage begins
  • Created without undue pressure on either party
  • Reviewed by each party before signing

A prenuptial agreement is not an oral agreement, generally speaking. Likewise, a prenuptial agreement cannot take place after a marriage (although post-nuptial agreements are an option). If one spouse does not have time to review the agreement before signing, does not have access to legal counsel before signing or signs the agreement under pressure from the other spouse, the agreement may not hold up in court.

Similarly, prenuptial agreements must include only legal and "conscionable" terms. For instance, courts typically do not allow spouses to outline child custody in a prenuptial agreement. Likewise, courts are suspicious of agreements that are harshly one-sided. If your agreement states that you will take all of the liabilities from your marriage while your spouse profits from taking all of your marital assets, this may raise eyebrows, at the very least.

Courts also take issue with false or incomplete information in a prenuptial agreement. If the agreement contains bad information, some or all of the agreement may become invalid.

Protecting your rights during divorce

A strong prenuptial agreement is one of the best ways to protect against the difficulty of divorce, but it is never wise to assume your agreement is airtight without reviewing it carefully. If you find that the agreement is not fair, you may also find ways to challenge it. It is wise to review the document and understand any weaknesses that your spouse may use to their advantage.

Respectful divorce is possible, for those who want it that way. Thoroughly reviewing your prenuptial agreement ensures that you understand the tools you have available so you can focus on navigating this difficult season on the way to a fresh start.

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