Prenuptial agreements can be invaluable if done correctly

May 07, 2013 (Press-News.org) Prenuptial agreements can be invaluable if done correctly

Article provided by Skey & Bhattacharya LLC
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Prenuptial agreements have gained respectability in today's society. Previously, some couples were hesitant to protect themselves financially before a pending marriage because it may have been seen as unromantic or cynical. Those suspicions are far now less prevalent than they once were.

Prenups give couples the ability to enter into marriage knowing that each is acting responsibly towards finances both individually and as a couple. Further, if one member of the couple has previously been married, for example, a prenup can protect that person's estate plan and ensure any children from a previous marriage are cared for.

Prenups allow the couple to agree in advance on a large number of financial decisions should the couple eventually split. Generally, this saves time, money and emotional stress in the event of divorce. Having these agreements in place can cut down on bitter negotiations and lower attorney fees. Because all assets must be disclosed in a prenup in order for it to be valid, it also lets each person know the state of the couple's finances before entering marriage.

However, a prenup must be created in accordance with state law and carefully drafted to ensure the agreement is fair for the couple involved. If there is a drafting error, illegal provision or other act that would invalidate the prenup, a court may remove the offending provision or completely waive the entire agreement. For example, a prenuptial agreement cannot set child custody obligations. However, it is free to set spousal support (alimony) and allow one person to keep certain property or assets in the event of divorce.

Common errors that can invalidate prenups are:
-A lack of representation: Each party should have representation to ensure that they understand what is included in the agreement and the ramifications of all of the provisions involved. When both parties have representation, it also cuts down on the chance that a court could find that one person did not have time to properly read and consider the agreement, which is also a basis for invalidation.

-The assets listed were incomplete or fraudulent: If one soon-to-be spouse hides assets in the prenup or if the prenup is done hastily and the couple has not considered all assets, it may be found invalid.
-The prenup is "unconscionable": Besides absurd provisions that a prenuptial cannot address such as a requirement that one party be nice to in-laws, which is a regularly recited invalid but actual provision often included in some prenuptial agreements, a judge may invalidate any provision that is grossly unfair. A judge may allow prenuptial agreements where one spouse waives the right to alimony. Whether a prenup is unconscionable is highly dependent on individual circumstances.

It is best to begin the process of creating a prenup early in the engagement. This allows time for each member of the couple to consider his or her goals in the legal agreement. Couples seeking to create a prenup should contact an experienced family law attorney to discuss their options.