Prenup Pitfalls: What to Avoid

February 13, 2019


Negotiating the terms of a Marriage Contract is very important, but more importantly you need to ensure the contract is enforceable. Here are some common mistakes you should avoid: 


1. Failing to Disclose


Parties need to disclose all assets and debts in their name. If you or your partner fail to provide financial disclosure, or purposely undervalue or inflate your financials, this may be grounds for setting your agreement aside. 


2. Making Uninformed Decisions


Should the validity of your agreement come into question, the court needs proof that each party made informed choices and understood the consequences of their decisions. The best way to achieve this is to ensure each party receives independent legal advice prior to signing. “Independent” means you and your partner should use different lawyers, preferably at different firms. Avoid calling lawyers on your partner’s behalf or corresponding with your partner’s lawyer directly.  


3. Unenforceable or Unconscionable Provisions


It is perfectly acceptable for a prenup to be biased towards one party. (After all, if you wanted to share everything equally, you would not be getting a prenup in the first place.) However, your agreement should not be so one-sided that it renders the agreement “unconscionable” (meaning completely unreasonable or unfair). Additionally, any outrageous provisions (such as a party must maintain a certain weight or do all the chores) may weaken your entire agreement. An experienced lawyer will assist you in ensuring the provisions of your agreement are unambiguous and enforceable.


4. Coercing your Spouse into Signing


As with any other contract, if one party is pressured into signing or lacked the capacity to sign, the court will render the agreement invalid. Even if your partner received independent legal advice, they may later claim they were under duress to sign. Do not threaten, coerce, or entice your partner with bribes to sign the agreement. If you are hesitant about signing, do not agree to the terms just to end an uncomfortable discussion.


5. Signing on the way to the Alter


It is difficult to prove that both parties made informed decisions when the agreement was signed on the way to the alter. It is recommended that a Marriage Contract is signed at least one to three months before the wedding. This validates that each party took the time to consider the terms of the agreement and made a conscious and willing choice to sign. If you and your partner haven’t worked out all the kinks of your agreement, nothing prevents you from signing the contract after the wedding.

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