A prenuptial agreement is a pre-marital agreement that outlines how assets would be handled and distributed in the event of divorce. A  challenge that the parties may face is where the prenuptial agreement will be enforceable  by a court. Notably, the enforceability of a prenuptial agreement will not only rest on whether the agreement was in writing and signed.  A prenup’s enforceability will also depend on voluntariness and fairness. Also, adequate disclosures will be required prior to entering into the agreement.

Voluntariness prenuptial agreement template, prenup 

prenuptial agreement

Did parties enter into their prenuptial agreement voluntarily? For example, a husband asking his wife to sign a prenup 10 minutes before walking down the isle could be “coercion”. Especially when done without the presence counsel. Generally, a court would not enforce this agreement, and the bride would be able to prove involuntariness to void that contract.

Fairness  Prenup, Prenuptial Agreement Template

The fairness requirement will typically refer to the fairness of the clauses themselves. The more one sided, the more indicative of unfairness or unconscionability. For example, a clause in a prenup that stipulates a husband’s  separate property would remain as such, but a wife’s separate property would become marital property after marriage probably likely fail the fairness requirement. The courts will deem this prenup unenforceable.

Disclosure

Both parties to the prenup are obligated to properly  disclose  their assets or obligations to the other side. Failure to disclose relevant property information to the other side, prior to entering into the agreement, could render the agreement unenforceable. Prenuptial agreement enforceable.

Importantly, under a jurisdiction that has not adopted the Uniform Pre-Marital Agreement Act (UPAA), any one of the above conditions would be enough to void the contract. However, in a UPAA jurisdiction, the agreement would only be unenforceable in one two ways.  The court will either find involuntariness, or it will find unfairness without adequate disclosure to the other party. Prenuptial Agreement enforceable. 

A Steady Rise In Prenups – If Enforceable…  Prenup, Prenuptial Agreement

Parties often take all reasonable steps to ensure enforceability of a prenup. But a court may deem that the prenup is not valid in that particular jurisdiction. This is partly because courts have traditionally applied harsher methods to validity. However, as prenups become more popular and divorce rats soar, courts have adopted a more liberal reading of the agreements. prenuptial agreement enforceable

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