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How do you increase the probability that a Prenuptial Agreement will be enforced?

Posted on January 13, 2014 at 3:12 PM Comments comments (941)
*No attorney can guarantee the enforceability of a prenuptial agreement.*

Some factors that increase the chances of enforceability are:

(1)    Time: Giving the spouse that is not asking for the prenuptial agreement more time to consider the agreement. If possible, this should be done before an engagement. If that is not possible, then as closely after as possible. The more time the spouse not asking for the prenuptial agreement has, the less the agreement looks like it may have been made under duress. After the invitations have been sent out and deposits have been paid, sometimes embarrassment and financial concerns of the risk of the wedding proceeding can constitute sufficient duress to void a prenuptial contract. All things considered however, contracts that were given to the non-requesting party only days before the wedding have been upheld. However, this is not the best practice and decreases likelihood of enforcement immensely.

(2)    Negotiation: If the other spouse has time to negotiate more favorable terms and actually does negotiate more favorable terms, the agreement is more likely to be enforced.

(3)    Representation: If the other party has representation, the other party is more likely to understand the repercussions of the agreement, and therefore the agreement is more likely to be enforced. 

Can we change a prenuptial agreement once we have made that agreement?

Posted on January 13, 2014 at 3:00 PM Comments comments (806)
Yes, and this can actually increase the likelihood of enforcement in some situations. However, once a prenuptial agreement is changed or amended, typically it is after the marriage. Therefore it would then be called a post-nuptial agreement.

A post-nuptial agreement is like a prenuptial agreement in some ways. However, even if you never entered into a prenuptial agreement, couples can still enter into a post-nuptial agreement. 

Can we agree to Child Custody matters or Child Support in a Prenuptial Agreement?

Posted on January 13, 2014 at 2:58 PM Comments comments (1299)
Technically, yes, you can agree to custody matter or support in a prenuptial agreement. The more important question here, however, is about enforceability. Will a prenuptial agreement that has an agreement as to custody and support be enforced? The answer is probably not. The entire agreement may not be voided if there are other aspects to it and there is a severability clause, but agreements as to custody and support have routinely been voided by the Courts.

The reasoning behind the non-enforcement of custody and support has two main facets: (1) best interests of the children involved and (2) ever changing life circumstances. A typical custody or support matter that was decided usually during the pendency of a divorce, is always modifiable if there is a significant change in circumstances. The number of ways in which this requirement can be met are as numerous as the stars. Someone could change jobs for instance. This could mean both a change in salary and a move to a different state. The custody agreement made when both parents are local will look very different from one that is agreed to when one is local and one lives 1,000 miles away. The support agreement may change because the salary of the party paying support changed or in the alternative, if the parent receiving support changed. The calculation is dependent upon the relative salaries of each parent. Agreements of support and custody necessitate change in order to accommodate the best interests of the child and adjust to the changing circumstances of their parents and their lives. This is why a non-dynamic custody agreement memorialized in a prenuptial agreement will rarely be enforced.

When do you need a Prenuptial Agreement? What are indicating factors?

Posted on January 13, 2014 at 2:54 PM Comments comments (904)
Age: This indicator plays into the indicators below. The older someone is, the more likely it is that they will have had a previous marriage, substantial assets that are individually owned, or a business that they own. Considering this economy however, there are a lot of younger entrepreneurs out there in the business world, so age is not always an indicator of how likely you are to need or want a prenuptial agreement.

Previous Marriage: Someone typically might think that a person with a previous marriage just wants a prenuptial agreement to save themselves some of the hassles of another divorce proceeding. There are other factors at play here however and a number of reasons that a previous marriage could affect the financial situation of the next marriage.

Substantial Assets: The best use for a prenuptial agreement is for protecting assets that were owned before marriage. The more that you have to protect, the more sense it makes to have a prenuptial agreement in place so that a future spouse cannot try to take assets that were earned before the marriage. The rules of commingling are incredibly complex at times—commingling being a situation in which assets acquired before a marriage are mixed with marital funds. Additionally, many people find, much to their chagrin, that the rules of what is marital and what is separate property are not as intuitive as one might like.

Business: If you are a business owner, you probably have a lot of time and effort put into the business. Because you work at the business, you probably consider it something akin to a job. In truth, a business is an asset. There are ways in which this asset can become marital. Sometimes this can mean that during the pendency of a divorce the function of a business can be disrupted because the opposing spouse lays claim to part of the business. Again, the rules here can be far less than intuitive. A prenuptial agreement can protect this asset.