A prenup can help … as long as it is valid
Prenuptial agreements can be a great tool to provide asset protection in cases of divorce. For example, if you own a business in the Gaithersburg area and you are thinking about marriage, you may want to create a prenuptial agreement that safeguards the company against a possible divorce. Imagine for a moment, that you and your fiancé do sign a prenuptial agreement and after years of marriage, you decide it is no longer working and you choose to go your separate ways.
During your first meeting with your divorce attorney, you walk in, full of confidence that your prenuptial agreement will be the basis of the settlement. Everything is there, in writing, and you do not have anything to worry about. Or do you? Like with many other contracts, there are certain requirements that a prenuptial agreement must meet to be valid. To find out what makes a prenuptial agreement invalid, read further.
Lack of separate, independent representation
One of the major requirements of a valid prenuptial agreement is that each party must have different lawyers who are independent. Furthermore, each party must completely understand the terms of the agreement and enter into it voluntarily.
Existence of duress
Like with other contracts, each signor must agree to the terms without the existence of undue pressure and with full mental capacity. This means that one or both of you must have been free from the influence of drugs or alcohol when you each signed the agreement. In addition, one party could not have used any kind of threats or other force to make the other sign it.
Waiting too long
If you are going to enter into a prenuptial agreement, it is best to do so within one to three months before the wedding. This is not something that you should put off until the last minute. If one or both of you sign the prenup just before the wedding, the court might rule that coercion was present at the signing and therefore, invalid.
Other reasons that a court might rule that a prenuptial is invalid include the existence of prohibited terms, one party does not fully disclose all assets, or the terms being unconscionable. If the contract specifies when and how much child support one party will provide, the court will probably throw out the entire document. If you have a prenuptial agreement and you are considering divorce, you may not be able to depend on the marital agreement if one of the above conditions is present.
