A prenuptial agreement is not worth the time or trouble you spent creating it if a judge finds it unenforceable. Often, the unenforceability of the document does not come to light until years later, when the couple is going through divorce or one spouse dies.
This blog will explain common mistakes to avoid when creating a prenuptial agreement to help you avoid this situation. North Carolina prenuptial agreements attorneys can help you craft a prenuptial agreement that meets your needs and goals.
The Eleventh-Hour Mistake
It is essential to bring up the subject of a prenuptial agreement early, well in advance of the wedding. Both parties need to have time to reflect on the consequences of the agreement and get independent legal advice. The agreement cannot be a “take it or leave it” agreement. Each side must be able to negotiate for fair terms.
Despite these legal facts, many people surprise their future spouse with a prenuptial agreement right before the wedding. The future spouse might feel pressured to sign the paper because of the closeness of the event. Judges will always be suspect when a prenuptial agreement gets signed shortly before a wedding.
The Nuts and Bolts of Contract Law
Because a prenuptial agreement is a contract, it must comply with all of the requirements for a valid and enforceable contract. When people try to write their own prenups or use a preprinted form, they often miss requirements in the drafting or execution of the contract. These mistakes could make the agreement void.
Failure to Disclose Debts and Assets
Both parties must make a full disclosure of their financial position, including things like their debts, liabilities, obligations, assets, and family wealth. A future spouse needs this information to carefully evaluate what they will be giving up if they sign the prenuptial agreement. It is best to make these disclosures in writing so that you can prove what you disclosed.
Years down the road, a judge will not be able to tell who is telling the truth if they do not have documentation of the disclosures.
Being Heavy Handed
Despite what daytime television portrays, if one future spouse puts too much pressure on the other to sign the prenuptial agreement, a judge might throw out the document years later. As we have already discussed, a prenuptial agreement is a type of contract. Both parties to a contract must enter into the agreement freely and voluntarily.
If the judge believes allegations that there was coercion or undue influence on one party to sign the paper, the judge might refuse to enforce the prenup on the grounds that it failed the requirement of all valid contracts, that of being entered into freely. An example of coercion or undue influence is threatening a future spouse that you will reveal an embarrassing secret or tell the police about a criminal act if the future spouse does not sign the prenuptial agreement. With so much at stake, you will want to talk to North Carolina family law attorneys to create a prenuptial agreement or to negotiate one prepared by your future spouse. Reach out to our office for help with your case.