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FOUR AREAS OF INQUIRY ON PRENUPTIAL AGREEMENTS

Prenuptial agreements are enforceable if properly prepared and executed. While some people might call them “romance killers,” they can be effective tools for preventing litigation and for saving assets for children from another marriage. Here are the four key inquiries:
 
  1. Was there adequate financial disclosure? The way to solve that inquiry is to attach accurate financial statements.
  2. Was there legal counsel? If both parties have counsel, there is little chance the agreement will be set aside on the grounds of duress or ignorance.
  3. Was there fraud or duress? Many agreements are handed to the prospective spouse on the day before the wedding with the ultimatum, “sign this or there will be no wedding.” Such conduct places the agreement in great jeopardy of being set aside. The best practice is to have the agreement signed weeks in advance of the wedding with both sides being represented by counsel.
  4. Is the agreement unfair? This is a very vague inquiry, but if a court feels the agreement is patently unfair, they may set it aside on that basis alone. However, if there is adequate financial disclosure, counsel, and plenty of time to evaluate the agreement, it is probably not going to be set aside on this basis.
Source: “Prenuptial Requisites” by Mark A. Chinn and Charles Greer, Family Advocate, American Bar Association Family Law Section, Vol. 24, No. 3 (Winter 2002) (see www.abanet.org/family/advocate)