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What You Need to Know Before Entering Into a Prenuptial Agreement – Pauline Nassif, Civil Litigation Paralegal

Getting married is an exciting and wonderful time in any couple’s journey.  It is a time for celebration and love and it is also a time which brings significant change into one’s life.  Remembering that marriage is also legally binding contract between two people, you may be asked to enter into a prenuptial agreement.

You might be somewhat familiar with a prenup in that it is an agreement which protects your interests in the event your marriage does not last.  However, because it is a legally binding contract you want to be sure you understand exactly what you are agreeing to by signing it and what could happen if the agreement is breached.

Carefully consider the following legal implications before signing: 

Hire an attorney (both of you). A prenup is not a simple agreement and there are rules about what can and cannot be included in the agreement.  Also, even after a prenup is signed there are a number of ways that the agreement can become invalid if done incorrectly. The best way to be sure that your prenuptial agreement is legally binding is to have it drafted by an experienced family law attorney.  In many states it is required that each party retains their own independent attorney.  In any case, it is best to do this no matter what the law states as doing so will provide both parties a chance to discuss their concerns with their counsel and negotiate the terms if necessary.

Prenuptial

Take some time. The time that is taken before entering into a prenuptial agreement is an important factor when considering the validity of the agreement.  Taking some time before presenting and entering into the prenup gives both parties time to review and consider its terms. Presenting a prenup to one party minutes before the two are to become married may invalidate the agreement if the party later argues that he or she did not have time to read it or review it with independent counsel. The prenup should be presented and reviewed well in advance of your wedding providing each party the opportunity to review and request changes if necessary.

Null and Void.   Presenting a prenup to your future spouse moments before saying “I do,” or using coercive methods to get your partner to sign the agreement could result in the agreement being rendered unenforceable as being made under duress. Failing to meet the contractual obligations and requirements, such as having both parties agree to its terms and providing consideration, may make the contract void. In some states, you may not make an agreement which allows the waiver of alimony payments or which are detrimental to the well-being or best interests of a child.  Provision that affect child custody or child support are typically not allowed in prenups. A basic tenant of legally binding contracts is that you cannot agree to do anything illegal. The same is true for prenuptial agreements

Of course nobody wants to think about planning for the end of a marriage while they are beginning their lives together, but knowing that you have entered into a valid and fair prenuptial agreement will protect the interest of both parties in the event of divorce and will provide peace of mind going forward into marriage.

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