What are common prenuptial agreement pitfalls? Many thoughts, ideas and agreements go into a prenuptial agreement, and because of that, disputes or disagreements on certain portions of the document might occur. Whether it is a celebrity couple, a high net worth individual or just the average couple, many hope to get the agreement finalized quickly. This alone could lead to the 10 common mistakes when a prenup is executed.
First, independent legal representation is not present. Both parties should have independent legal counsel, helping to ensure the contents of the document are understood and each party signed the document voluntarily. Second, duress could invalidate a prenup. This occurs when one party is pressured into signing the document or when he or she did not have the mental capacity to sign the agreement, such as being intoxicated or under the influence of a drug.
Next, the document was executed too soon before the marriage. Enough time should be given to understand and deliberate the contents, and if it is signed at the very last minute, this could be cause to invalidate it. Fourth, there was no full disclosure, meaning all the assets, properties and debts of the parties were not included in the agreement. Fifth, the document contains child support provisions, which are not allowed.
Sixth, the document is found unconscionable, which means that it is so one-sided or biased that no one would agree to it. Seventh, it includes unenforceable provisions such as requiring a party to carry out certain duties or maintain a certain physical appearance. Eighth, the prenup was made orally or contains oral agreements. Courts will not uphold oral prenups and these agreements are required to be in writing.
Next, there is ambiguous writing in the prenup. This occurs when it is not clear what is stated and ambiguous writing is used to confuse the reader or party to the agreement. Lastly, making promises that are not kept. The court could interpret this as fraud and throw out the prenup in the divorce proceedings.
Prenups can be complex documents. Couples should understand ways they could ensure the document is properly drafted and executed. This could help them avoid pitfalls that could make it unenforceable.
Source: Huffington Post, “10 Common Prenup Pitfalls,” David Centeno, Jan. 23, 201