How to Have an Enforceable Prenuptial Agreement

How to Have an Enforceable Prenuptial Agreement

Prenuptial (sometimes also called “premarital”) agreements can be very technical and complicated.  I’ve had more than a few clients come to me with a prenuptial agreement from an attorney or Legal Zoom and I’ve had the unfortunate role of telling them that something is wrong with their prenuptial agreement and for one reason or another is simply isn’t valid.

In order to have a valid prenuptial agreement, the following needs to be true:

  1. The parties executed the prenuptial agreement voluntarily.
  2. The agreement is not unconscionable (shockingly unfair) when it was executed.
  3. Each party was provided a fair, reasonable, and full disclosure of the property and financial obligations of the other party.
  4. Each party had adequate knowledge of the property and financial obligations of the other party.
  5. The party against whom enforcement is sought was represented by independent legal counsel at the time the prenuptial agreement was signed, or after being advised to seek independent legal counsel, expressly waived, in a separate writing, representation by independent legal counsel.
  6. The party against whom enforcement is sought had at least seven days between the time that party was first presented with the agreement and advised to seek independent legal counsel and the time the agreement was signed.
  7. The party against whom enforcement is sought, if not represented by independent legal counsel was:
    1. Fully informed of the terms and basic effect of the agreement as well as the rights and obligations he or she was giving up by signing the prenuptial agreement,
    2. Proficient in the language in which the explanation of the party’s rights was conducted and in which the agreement was written,
    3. The explanation of the rights and obligations given up must be in a writing delivered to the party prior to signing the agreement, and
    4. The party without an attorney shall, on or before the signing of the premarital agreement, execute a document declaring that he or she received the information required and indicating who provided that information.
  8. The prenuptial agreement must not be executed under duress, fraud, or undue influence, and the parties did not lack capacity to enter into the agreement.

If you need assistance with the drafting or review of a prenuptial agreement, feel free to contact Mioni Family Law at (424) 259-1770.