When divorce comes knocking, having a prenuptial agreement can make the entire process much simpler and less contentious. That is, as long as the agreement holds up to scrutiny by each spouse and the court handling the divorce. Many prenuptial agreements contain errors or weaknesses that a spouse may contest or a court may not uphold.
Before you use your prenuptial agreement, it is a good idea to review it carefully to identify weaknesses. Unfortunately, spouses must finalize and sign prenuptial agreements before their marriage, meaning you may need to plan your divorce strategy to include any weaknesses you find. It is rarely good for a prenuptial agreement to hold surprises when it comes time for divorce.
Prenuptial agreements with weaknesses of execution
If a couple does not execute their prenuptial agreement properly, a court may not uphold it. Similarly, weaknesses in a prenuptial agreement's execution create opportunities for either spouse to challenge the agreement and pressure the other party for different terms. This may occur if:
- An agreement is merely verbal, not established in writing
- A party signs the agreement without reading it
- A party signs the agreement without independent legal counsel
- An agreement contains factual errors
- An agreement does not include full disclosure of one or both party's finances
- An agreement was not executed before marriage
- An agreement was not executed with proper witnesses
These technical errors are often enough for a court to dismiss some or all of an agreement, leaving divorcing spouses back at square one when it comes to property division and other issues.
Improperly created prenuptial agreements
Even if an agreement does not contain execution errors, it may not hold up to legal scrutiny. Simply creating an agreement does not mean that a court must honor it, especially if a court believes that one party is at an unacceptable disadvantage. A court may refuse to uphold an agreement if:
- One party signed the agreement under pressure from another party
- One party was not given time to review the agreement
- An agreement contains illegal terms, such as terms surrounding child custody or child support
- An agreement leaves only one party in severe financial hardship
While these issues are not always easy to navigate, they can wreak havoc on a divorce.
Protecting your rights throughout divorce is not a simple process, but it is vitally important as you begin planning for the next season of life. A well-built divorce strategy uses the law to protect you and help you establish yourself on the other side of this difficult personal chapter.