The timing of when a prenuptial agreement is typically enforced usually revolves around some sort of change in the status of a married couple, such as death, separation or divorce. Spouses generally choose to enter into a prenuptial agreement with the desire of preserving the status quo of some major assets even when one of those unexpected events happen. If spouses have an uneven distribution of wealth or any businesses owned solely in one partner’s name, this could lead them to think about a prenuptial agreement as a way to make sure that those assets stay in tact.
In order for a prenuptial agreement to be enforceable, it must be written down and signed by both parties. There are other requirements that courts will also look into, but without a signed prenuptial agreement, there is really nothing to enforce in most cases. Even though you may think at the time of signing the prenuptial agreement that there is no way for either party to contest it or try to get out of certain provisions of the prenuptial agreement, they are not always as tight as you might think.
Upon divorce or separation, one spouse may file a motion with the family law court to enforce the prenuptial agreement. This spouse will typically be the one who would not be losing money under the prenuptial agreement. If the other spouse disputes that the prenuptial agreement should be enforced, then that spouse will have to convince the court that there is some reason that part or all of the prenuptial agreement should be disregarded. This is not always an easy task, but it happens more often than you might imagine. Just because one spouse is not happy with the terms of the prenuptial agreement that he or she agreed to before ending the marriage, this is not a valid reason to ask the court to ignore the provisions of the prenuptial agreement.
Some of the reasons that a prenuptial agreement would be unenforceable include:
- One spouse may be able to prove that he or she was forced to sign the prenuptial agreement against his or her will.
- If both spouses were represented by the same NYC prenup attorney, there may be a conflict of interest, making the prenuptial agreement invalid.
- There may be certain terms of the prenuptial agreement that cannot be legally enforced, but the court will still try to uphold the other portions.
- If the prenuptial agreement is unconscionable, or extremely unfair to one party, the court will reject the entire agreement.
It will be difficult to get through the process of trying to have a court enforce a prenuptial agreement without the assistance of an experienced family law attorney. There are many complexities in interpreting these types of contracts, which may not be evident to the average person. The sooner you retain a trusted family law attorney to assist with your prenuptial agreement, the better position you will be in to gauge what your ultimate obligations and benefits will be under the prenuptial agreement. Even if you are still in the early stages of the process, speaking with a competent attorney can give you a better idea of what to expect and how long the process could take to get a prenuptial agreement enforced by the court.
What makes prenuptial agreements legally binding
A prenuptial agreement is a binding contract between two individuals who plan to wed. Because a prenuptial agreement is a contract, there are certain elements which must be in place in order to make a prenup legally binding.
Legal Consideration
At the heart of any contract, including a prenuptial agreement, is something that is known legally as consideration. Consideration represent each party to a contract giving the other party something of value. For example, in a contract to purchase an automobile, one party provides money and the other party provides a vehicle, each party providing something of value.
Written Contract
A prenuptial agreement must be in writing. Although certain types of verbal contracts are legally binding, there is no such thing as a binding verbal prenuptial agreement.
Adequate Disclosure
In order for a prenuptial agreement to be binding, the parties must each make sufficient disclosures to one another. Specifically, each party must sufficiently disclose assets, income, and debts in advance of entering into a prenuptial agreement.
Ample Time to Review
Each party intending to enter into a prenuptial agreement must be provided with ample time to review the document. This includes providing each party ample time to consult with independent legal counsel before signing a prenuptial agreement.
Consult with Legal Counsel
In many situations, the NYC prenup attorney for one of the people intending to wed is the individual that will draft a proposed prenuptial agreement. As a result, the NYC prenup attorney that drafts the document cannot provide any type of legal advise to the other individual intending to marry.
The person not represented by a NYC prenup attorney must be provided ample opportunity to consult a NYC prenup lawyer before a prenuptial agreement is signed. The failure to permit a person sufficient opportunity to seek legal advice can result in a prenup being set aside as unenforceable, even if both parties end up signing it.
Voluntary Execution
Both parties to a prenuptial agreement must enter into the contract voluntarily. They cannot be forced or coerced into signing the document. It must be done as the free and voluntary act of both parties.
If one party to a prenup was threatened or deceived into signing a prenuptial agreement, that contract can be declared void or invalid if challenged at some juncture in time. Indeed, this is one of the most common reasons why a prenuptial agreement is set aside at some future date and time.
Signature of Both Parties
A prenuptial agreement must be signed by both parties. In some states, a prenuptial agreement must be signed by both parties in front of a notary public. The parties to a prenup need to make certain that the specific signing requirements in a particular state are fully satisfied. The failure to follow these requirements can result in a prenup being declared invalid or unenforceable at some future point in time.
A person planning on marrying, who is faced with the prospect of entering into a prenuptial agreement, should be proactive in retaining legal representation to represent his or her legal rights and interests. Prenuptial agreements are complicated contracts. A skilled, experienced NYC prenup lawyer can provides vital assistance in matters associated with entering into a prenuptial agreement in advance of becoming married.
A NYC prenuptial agreement attorney will schedule an initial consultation with a prospective clients. Typically, there is no fee charged for an initial consultation.
