Simple mistakes can invalidate prenuptial agreements
In theory and often in practice, a prenuptial agreement provides some protection to a spouse in the event the marriage fails. Ideally, these agreements clarify property rights and responsibilities and establish ongoing financial security for both spouses. For those reasons, many California spouses who have prenuptial agreements sleep a little easier even if divorce seems to be on the horizon.
Unfortunately, just a few simple mistakes can render a supposedly iron-clad prenuptial agreement invalid and lead to an unexpected dispute.
For one, both coercion by one party and terms that are only favorable to one party will likely nullify a prenuptial agreement. For example, if a prenuptial agreement favoring one party is enforced and forces the other party to rely on state welfare following divorce, a court may decide not to enforce the agreement even if it is otherwise valid.
A prenuptial agreement that was signed just days or weeks before the wedding also may not be considered valid, because a spouse can argue that it was signed by coercion. Preferably, a prenuptial agreement should be signed no later than 1 to 3 months before the wedding date.
And just as in property division during a divorce, full disclosure of all assets is critical. If one or both parties do not completely reveal all assets, a court can invalidate an agreement and force property and asset division to be re-negotiated.
Specific provisions about child custody and child support, provisions that are unconscionable (such as leaving one spouse with no assets but substantial debt) or unenforceable are also likely to invalidate a prenuptial agreement.
Although it may seem obvious, a prenuptial agreement should be in writing. The details in a prenuptial agreement should be clear, understandable and mutually agreed upon by both parties. Finally, the agreement should probably be drafted with the assistance of the legal representatives of both parties so as to ensure that both parties voluntarily agree to it.
Source: Huffington Post, “10 common prenup pitfalls,” David Centeno, Nov. 4, 2013