Indeed, if you do decide to go your separate ways, a court could conclude that your settlement will look very different to the one you have set out in your prenuptial agreement. If not done properly, your prenuptial agreement is less likely to be enforced by a court.
Here are 6 factors that often cause a judge to give less weight to, or completely disregard, a prenuptial agreement:
Both parties must enter into the prenuptial agreement voluntarily. If one person uses any power they have over the other person, to gain an unfair advantage, then a judge will not enforce the prenuptial agreement.
Both you and your spouse should obtain independent legal advice on your prenuptial agreement. If you fail to do this, your spouse could say that they didn’t understand the implications of the agreement and so it should not be enforced.
You must make sure that you fully disclose all of your finances to your spouse before entering into a prenuptial agreement. If you do not do this, your agreement could be given less weight if a judge is ever asked to decide your financial settlement after divorce.
Ensure that you leave as much time as possible between starting to draft your prenuptial agreement and your wedding date. Ideally, we recommend that our clients leave at least 6 weeks. A judge could give less weight to a rushed prenuptial agreement.
If your financial situation has changed significantly since you entered into your prenuptial agreement, a court will take this into consideration, when deciding whether or not to enforce your prenup. Other factors, such as your age at the time of entering into the agreement, could also be taken into account.
You must ensure that your agreement is fair to both you and your spouse. If a judge thinks that to enforce your agreement would be unfair, then they may choose not to enforce your prenup.
By ensuring that your prenuptial agreement is entered into correctly and with the right legal advice, you can give your prenuptial agreement the best chance of standing up in court, should you ever need it to.
If you’re thinking about drawing up a prenuptial or postnuptial (after marriage) agreement with your partner, it’s important for both of you to obtain independent legal advice well in advance of the time you wish to sign the agreement.
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