As previously discussed in our blogs over the years, no one gets married anticipating to get divorced. Unfortunately, the statistics in this regard do not lie and about half of those who tie the knot end up in divorce court. For those couples, is a prenuptial agreement necessary? At the very least, it becomes very useful for the couple whose diamonds don’t last forever. Discussing the topic of getting a prenuptial agreement may seem awkward, if not outright difficult. It won’t be the first nor the last difficult discussion for any married couple. Because it is not an easy conversation, many may choose to procrastinate bringing up the subject. This may prove to be a big mistake.
While prenuptial agreements are generally quite useful to any divorcing couple, if certain requirements are not met, they may become not only less useful, but a source of litigation. That is why it is important to speak to an attorney about the pitfalls to avoid, such as:
- Timing: a spouse could challenge a prenuptial agreement alleging that he/she signed it under duress. Imagine being presented with a prenuptial agreement a week before the wedding and being told that if it isn’t signed, there will be no wedding? The prenuptial agreement should be introduced in enough time before the wedding to give the other spouse enough time to:
- find an attorney
- consult with the attorney
- potentially negotiate the terms of the agreement
- make all modifications as needed (some attorneys are pretty busy!)
- arrange to sign the agreement in front of witnesses and a notary
- get back to the business of getting married!
While there is no bright line as to how much time is enough time within which to sign a prenuptial agreement before a wedding, the 11th hour prenuptial agreement is likely to be invalidated, if challenged.
- Full Financial Disclosure: the prospective spouses need to provide each other the necessary documents that accurately reflect their respective financial situations. A person cannot be expected to make a decision that may impact their life without complete information. Since the valuation of certain assets can be tricky, if not downright difficult, an attorney can help.
- Fairness: the more the prenuptial agreement can be said to be fair and reasonable, the less likely it is to be challenged. In addition, provided that the prenuptial agreement was negotiated and signed in a timely fashion, that there was full and frank financial disclosure and that its terms and provisions are fair and reasonable, the better the chances that a court would validate the agreement should it be challenged in the first place.
Not necessary, but a good idea if the finances allow:
- Video recording of the signatures: since one of the reasons a spouse could choose to challenge a prenuptial agreement is “duress or coercion”, a good idea is to have the notary or witnesses video record when the prospective spouses sign the agreement. Before the actual signing of the prenuptial agreement, it is further a good idea to go over the terms and the provisions contained in it, making sure that both prospective spouses understand what they are signing, that they ask questions, if any, before signing it and that they say that they not only understand but that they believe the agreement to be fair and that they are signing it freely and voluntarily, without pressure, duress or coercion.
While there is no way to make any prenuptial agreement 100% guaranteed, safe or infallible, avoiding those most common pitfalls is a step in the right direction, making the somewhat uncomfortable exercise well worth it for both spouses.