Prenuptial agreements are essentially marital contracts drafted by future spouses. Engaged couples sit down to negotiate terms and plan for the future. Drafting a prenuptial agreement is beneficial for a broad range of reasons.
First and foremost, couples who are at a high point in their relationship during their engagement are more likely to work together amicably than couples who are at the end of the relationship and facing divorce. Additionally, the process of negotiating a prenuptial agreement can help couples understand each other better before they legally marry.
Ensuring that a prenuptial agreement is valid, and therefore enforceable, in the event of a divorce is important. All three of the details below are important for ensuring the validity of a prenuptial agreement.
1. Mutually beneficial terms
One of the most common reasons that the family courts set aside prenuptial agreements is a claim of an unconscionable contract. If the agreement only focuses on the protection of one spouse, the courts may agree that it is an unfair and unenforceable contract. Both spouses should include provisions that protect them and their resources in the event of a divorce.
2. The inside of two separate lawyers
Couples sometimes hire one lawyer to draft a prenuptial agreement. While the document can be the product of a single attorney’s efforts, that lawyer cannot effectively represent both fiances. An attorney has a duty to act in their clients’ best interests, and they typically cannot represent two people with potentially conflicting needs at the same time. If both spouses have their own representation before signing, then the document is more likely to withstand scrutiny in family court later.
3. Practical, not personal provisions
Some people try to micromanage the details of an intimate relationship in a prenuptial contract. They might want to include clauses prohibiting weight gain or demanding a certain frequency for physical intimacy. The courts are incapable of enforcing those clauses in most cases. The inclusion of too many personal demands or expectations can raise questions about the overall validity of the prenuptial agreement. It is generally better to focus on establishing what assets may be separate and other practical, financial matters that may arise in the event of a divorce.
Working with an attorney to craft a custom prenuptial agreement can help people preparing for marriage limit the risk of a messy divorce later. A prenuptial agreement can allow for an uncontested divorce and may even reduce the likelihood of divorce by helping couples align their values and expectations prior to marriage.