Whether you’ve gotten married and divorced in the past or have just gotten engaged for the first time, you may find yourself wondering if you need the protection offered by a prenuptial agreement. Although prenuptial agreements were once used primarily by the wealthy, powerful and famous, they have become a common-sense tool used by people of all backgrounds as a way to protect themselves in a marital relationship.
Creating a prenuptial agreement does not mean that you aren’t fully committed to your marriage. Instead, it just means that you want to avoid the countless potential issues that can arise during a divorce by planning well early in your relationship and avoid the need to divorce by making your expectations for the relationship and your spouse clear.
There are certain steps that you can take to ensure that a prenuptial agreement adequately protects you and will hold up in court if you get divorced.
Both future spouses need their own attorney and terms
One of the most common reasons that courts choose not to uphold prenuptial agreements is that the agreement only protects one spouse. Both spouses should have protections and benefits incorporated into the documents. Prenuptial agreements that only protect one spouse’s assets as separate property will likely be unconscionable in the eyes of the court.
In order to demonstrate that both parties have signed the document with awareness of its implications, it is important that both you and your future spouse have your own, separate attorney review the document.
Be careful about including unenforceable provisions
Another common mistake people make while drafting a prenuptial agreement involves them including terms that violate state law or that the courts simply will not enforce. In some cases, the courts may ignore a clause that violates the law, or that one clause could be enough reason to invalidate the entire document, depending on circumstances.
Examples of problematic provisions could include one spouse agreeing not to seek or collect child support from the other if they divorced. If you do want to include language about your expectations for your spouse or your marriage, great care is necessary to help ensure you don’t unintentionally undermine the enforceability of the contract by including too many personal requirements.