Tips for Drafting a Legal Prenuptial Agreement

Prenup Agreement Advice

Sep 15, 2009 Kristi Carter

Individuals drafting a prenuptial agreement must ensure they follow certain rules to ensure that the court finds their agreements valid.

If a couple is going to sign a prenuptial agreement, they need to make sure it is will be legal in a court of law. The worst thing that can happen is for individuals to carefully plan their prenuptial agreement and then have it declared invalid. Therefore, they should show strive for a fair and mutually acceptable agreement that protects both parties. Learn proven strategies to create a legally binding prenuptial agreement.

Make Sure There is Enough Time for a Prenup

A prenuptial agreement must be written with plenty of time before the wedding to ensure proper counsel is obtained and there is no duress. For this reason, individuals should give themselves several months to talk about a prenup with their attorney and then have the contract drafted and signed. If the couple wants a prenup but the wedding is just a couple weeks away, make sure the attorney has the ability to spend several lengthy sessions with each person.

Document these sessions so that it is clear that the prenup was not signed without time for either partners to think about what they are agreeing to. Make sure that each individual has equal time with the attorneys. If a judge hears that a prenuptial agreement was signed just a week or two before the wedding, he will need to hear evidence that there was no unfairness or undue pressure on either party.

If One Person Has an Attorney, the Partner Should Also Have an Attorney

It is best if both individuals have separate attorneys. If one party has an attorney and the other does not, it may appear unfair. A judge wants to make sure that the party with the attorney did not pressure the other person into signing something they did not fully understand. If the individual needs help finding a lawyer, they can search for family law attorneys at Findlaw.

It is not a requirement for attorneys to write the agreement, however, and individuals can find do-it-yourself forms at lawdepot. However, individuals should only use a form prenuptial agreement if both parties have the same amount of education (neither of you has an intellectual advantage over the other), both parties are fluent English-speakers, and there is no reason that a court would think that there was an unequal playing field. To have a do-it-yourself prenuptial agreement declared valid, be sure to have witnesses the signing of the agreement.

Give Each Other a Full Disclosure of Finances

Both partners should draw up lists of all their assets and any information relating to their finances. Although a prenuptial agreement will not be declared invalid just because an individual forgot to reveal a tiny bank account they never use, there will be a problem if one party fails to reveal they have a vacation home or a hundred thousand dollars in an undisclosed bank account. Unless both parties know what each other’s financial situation is, the prenuptial agreement will not be valid.

Make Sure You Have Not Contracted Around Prohibited Issues

There are some issues that will be ignored if included in a premarital agreement; for example, visitation of children, or anything illegal, coercive, or anything promoting of divorce. Some states allow individuals to come to an agreement in a marital contract regarding alimony, but this will depend on the state in which you reside.

Show That the Contract Was Signed Voluntary

Make sure that the document states that both parties wanted to form the prenuptial agreement and were signing the contract voluntarily, not under duress. Having a witness present when the couple signs the contract would be a good way to have proof that both parties went into the agreement willingly. Some even suggest videotaping the signing to prove that both signed voluntarily.

Sign in the Presence of a Notary

Both parties need to sign the contract and do so in the presence of a notary public who will then sign and notarize the document.

Important Note: This article is for informational purposes only and one should always seek the advice of competent legal counsel for specific information about your situation.

The copyright of the article Tips for Drafting a Legal Prenuptial Agreement in Law, Crime & Justice is owned by Kristi Carter. Permission to republish Tips for Drafting a Legal Prenuptial Agreement in print or online must be granted by the author in writing.

Prenuptial Agreement