Marriage is the biggest legal contract you’ll ever sign, although no one shows you the contract. The Prenuptial Agreement clearly defines the financial terms of your marriage contract.
Many couples decide to create a prenuptial agreement together before they get married. Although nobody wants to think about their impending marriage ending in divorce, the period before the marriage is actually a great time to negotiate a prenup. Partners have plenty of goodwill towards each other and want to look out for each other’s best interests.
Unfortunately, many people discover that the prenuptial agreement they created is not legally enforceable. Even worse, they generally find this out at the worst possible time – when the divorce proceedings have begun, and they are depending on their prenup to hold up in court. Many are surprised to find their written and notarized agreement is not valid.
We examine the most common factors that cause prenups to be invalid. If you have questions about your personal prenup, ask an experienced family law attorney. Their training and experience provide the best advice.
Lack of Financial Transparency
Prenuptial agreements should protect spouses’ financial interests in the event of a divorce, or at time of death. The prenuptial agreement must contain accurate and complete financial disclosure from each party. If a spouse was not honest when the prenup was being created, then the other spouse made decisions based on invalid information – and that might make the prenup unenforceable. The Illinois statute mandates financial disclosure.
Manipulation or Duress
If a spouse coerces or manipulates the other into signing a prenup, that fact can be discoverable to a divorce court. The prenup may be unenforceable. Some conditions that may be considered duress include announcing the desire for a prenup right before the wedding and making the wedding contingent upon the prenup, or pressuring a spouse to sign when they are under the influence of alcohol or drugs.
Timing
The most common error is timing. The majority of pre-nuptial agreement calls come shortly before the wedding. Antenuptial (meaning, before the marriage) Agreements must be signed well before the wedding. Think probably before the hall is booked, arrangements are made and the invitations go out. I recommend calling your attorney as soon as you decide to get married. That gives you plenty of time to discuss options, and have meaningful conversations with your spouse to be.
Grave Unfairness
Sometimes spouses get married when one spouse has substantially more income and assets than the other spouse. It is entirely possible to protect unbalanced assets in a prenup. However, if the prenup would leave one spouse depending on public aid or entirely homeless and without resources, it is likely to be considered unenforceable.
No Written Record
No matter how much they mean it at the time, a couple cannot verbally agree to a prenuptial agreement. This is true even if there are witnesses present. A prenup must be written down and signed by both spouses to be considered enforceable.
Bonus tips!
Just because it’s notarized, doesn’t mean it’s valid.
What you do during your marriage can greatly affect your Prenuptial Agreement. Only an experienced attorney will anticipate commingling, contribution and transmutation issues. Explanations are essential, and not as hard as they sound. Watch out for house refinances, businesses started during marriage, and mixing of marital and non-marital assets. Does your will match your agreement? Did your attorney explain spousal share?
If you move to another state, the laws may be much different. Will your agreement hold up? Which state will interpret your agreement. Make sure you include a choice of law provision.
So, how do you do it right? Properly done, it addresses your financial future, including who inherits from your estate. It can even include an expiration date (sunset provision).
We offer information, advice and checklists to make sure the most important contract you ever sign is correct!