Arndt, Sutak & Miceli, LLC

Prenuptial Agreements: Do’s and Don’ts

Prenuptial agreements
  1. Don’t sign the agreement too close to your wedding date.

Signing a prenuptial agreement too close to your wedding date might suggest to the court the agreement’s terms are the product of fraud, duress, or undue influence. The court, when reflecting on the circumstances under which a prenuptial agreement is entered, considers whether or not the parties had adequate time to consider its provisions of it and whether or not they were “under the gun” of the wedding date when signing. The court will not enforce an agreement that is entered into too close in time to the wedding date.  There is no bright-line rule or statute that attorneys or the court can point to, to say that this is “too close” or “just far enough away” that the agreement will be enforceable.  Most attorneys, in an abundance of caution, will not permit their clients to execute an agreement with less than forty-five (45) days before the intended wedding date for fear that any closer to the wedding date will render the agreement unenforceable.

  1. Don’t sign the agreement without first having it reviewed by your own independent attorney.

The terms, limitations, and conditions of a prenuptial agreement will have a drastic impact on any financial resolution of a future divorce proceeding. Discussing what you are receiving and what you are waiving under a prenuptial agreement with an attorney is the best way to confirm you understand its terms.  Both parties should be affirmatively informed to seek independent counsel for the court to consider it valid and enforceable upon one party’s filing for divorce.

  1. Do exchange all financial information (good and bad) with your intended spouse.

For a prenuptial agreement to be enforceable it must include complete financial disclosure from both sides of the agreement. This means parties should exchange tax returns, bank account balance information (checking, savings, retirement, brokerage, etc.), as well as credit card debt, student loan debt, and other long-term or short-term debt. The easiest way for parties to ensure that they have exchanged such information is to attach a schedule setting forth the values of all assets and debts to the agreement.

  1. Do enter into an agreement that is fair and reasonable.

The enforceability of a prenuptial agreement is ultimately determined by a Judge.  This will happen once a complaint about divorce is filed, and a party to the prenup asserts it should be enforced. The Court will then examine the terms of the agreement and determine if they are unfair or extremely harsh to one of the parties.  In all circumstances, any predetermination of custody will be unenforceable and will not be validly enforceable. So long as the terms of your prenuptial agreement are not one-sided or unreasonable, more likely than not, the agreement will be upheld.

Ensuring that all of the do’s and don’ts listed herein are followed will assist with the enforceability of your prenuptial agreement.  Assuring that you have the right legal representation is key, to assure your rights are protected. Contact our offices at 732-867-8894 or to schedule a consultation with one of our partners today to discuss your prenuptial agreement.

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