Incorporate These Measures Into Your Pre-Nuptial Agreement To Help Protect It Against Future Challenges In The Event Of a Divorce.
A pre-nuptial agreement can be a very useful tool for helping couples to make plans as to how assets and responsibilities will be divided in the event of a divorce. However, the simple fact that a pre-nup exists is not necessarily enough to guarantee that it will be followed when creating the divorce agreement. It needs to be a strong pre-nup.
Here are some important steps to take in order to create a pre-nup that will have the best possible chance of withstanding any legal challenges that your ex may raise against it.
Step 1: Get an Attorney for Each Spouse. When each person has their own independent attorney advising them, it is extremely difficult for either party to attempt to invalidate the pre-nup later on with claims that they were coerced into the agreement or did not understand their legal rights. To avoid even a whiff of impropriety, it is best for each party to find their own attorney and pay that attorney with their own funds.
Step 2: Fully Disclose All Assets. The pre-nuptial agreement should contain an addendum with a full and complete list of the property and assets currently belonging to each person. If any assets are hidden or not properly disclosed, this could provide grounds for the pre-nup to be invalidated.
Step 3: Include Reasonable Provisions. A judge can invalidate a pre-nup if it contains provisions that are considered unconscionable or in violation of public policy. For example, an agreement might be considered unconscionable if it is too lopsided. Remember that California is a no fault divorce state, and so any pre-nup provisions that assign fault to either party for ending the marriage could be considered in violation of public policy. For example, if you had a provision stating that if one spouse cheated on the other they would forfeit their share of marital assets or support, this provision could be questioned and potentially cause the entire agreement to be invalidated.
Step 4: Wait 7 Days. By waiting at least 7 days between drafting and signing the pre-nup, you help protect against the argument that one party was rushed or coerced into signing. The agreement should also be signed well before the wedding date.
Step 5: Get it in Writing. It is absolutely essential to get your pre-nuptial agreement in writing, as oral agreements are not valid. The agreement should be properly drafted by an experienced attorney, and it should be signed by both parties with their attorneys present. Having a judge or notary public witness the signing will offer even more protection.
