Prenuptial agreements are no longer documents solely used by the rich and famous to protect themselves nor are they a sign that you and your fiance will inevitably have a rocky marriage. Instead, they are a common-sense form of protection that you set up when your relationship is in a good place so that your emotions don’t run the show if your relationship declines.
If you create a prenuptial agreement now, you want it to hold up under scrutiny if you divorce in the future. The following three tips can significantly increase the likelihood of the courts upholding your prenuptial agreement in the future.
Make sure both spouses have protections and benefits
One of the most common reasons for the courts to toss out a prenuptial agreement is unconscionable terms. A contract has to offer value for both parties.
Often, prenuptial agreements simply protect the more powerful or wealthier spouse and offer little value to the other party. You and your spouse need to balance your requests and concessions so that the agreement benefits you both.
Both future spouses need their own attorney
Since you both likely agree on the terms you set, it may seem logical to use one attorney to draft the document and witness you sign it. Unfortunately, that could lead to claims by your spouse that they did not have counsel or representation prior to signing. Both spouses should have their own attorneys review the document and make adjustments if necessary.
Avoid including terms that the courts will not uphold
Other than unconscionable terms or documents signed without counsel, another leading cause of family courts invalidating prenuptial agreements is the inclusion of inappropriate and even illegal terms.
An expectant mother, for example, cannot waive child support on behalf of her unborn child, since she is technically not the beneficiary or recipient of those payments. Those who add terms about personal preferences such as intimacy, appearance or other relationship factors will likely find that the courts have no interest in micromanaging the relationship or upholding a clause that restricts what their spouse can weigh during the marriage.
Avoiding questionable and illegal inclusions will increase the likelihood of the courts upholding your prenup if you ever need to use it in a divorce.