Prenup Prep: What You Must Do Before Signing a Prenuptial Agreement
There is no harm in considering a prenuptial agreement if you are engaged or are thinking about getting married. To be sure, a prenuptial agreement offers significant protection to you and your family in the event of divorce or death. However, there are certain stigmas associated with these agreements that cause many to avoid them altogether.
First and foremost, do not feel guilty about considering a prenuptial agreement. It is quite common for people to think, “well, if they have a prenup, they must not really love their spouse,” or “they were just planning for the divorce from the beginning.” This is wholly inaccurate. A prenuptial agreement can actually improve a relationship because it enables both you and your spouse to go into a marriage with your eyes open and helps provide clarity as to where you stand financially if the marriage fails.
Now, if you decide a prenuptial agreement makes sense, here are some important steps you need to take:
First, hire an experienced Florida domestic relations lawyer. Retaining a quality, experienced Florida prenuptial agreement lawyer is essential to ensure that the agreement is properly drafted and will be recognized in a court of law. In fact, the process of creating a prenuptial agreement is just as important as the words on the page. You should encourage your spouse to get representation as well, because you don’t want to create the perception that your spouse was pressured or “duped” into signing the agreement that only your lawyer drafted. In fact, many disputes over prenuptial agreements have been based on the fact that only one spouse retained an attorney and the other spouse claimed they were misled by the language of the agreement and had no legal guidance.
Second, get a comprehensive list of you and your spouse’s assets at the time of the agreement. This is another critical step. You must have an accurate list of assets and liabilities that are available and reviewed by both you and your spouse prior to signing the agreement. Why? Ultimately, many prenuptial agreement disputes focus on the lack of disclosure of assets, or liabilities, by one spouse. For example, a dispute may arise if a spouse failed to mention that they had millions invested in bank accounts in the Cayman Islands. A good rule of thumb is to be as transparent as possible.
If you follow these important steps, you’ll improve the likelihood of having the agreement enforced by a court of law and you have a strong defense to the following attacks:
A Spouse Claims They Signed the Agreement Under Duress
Duress is defined as “a condition of mind produced by an improper external pressure or influence that practically destroys the free agency of a party and causes him to do an act or make a contract not of his own volition.” Herald v. Hardin, 116 So. 863, 864 (Fla. 1928). This is one of the most common attacks made against prenuptial agreements. A spouse claims that they were given an extremely short deadline between the time the prenup was presented to them and the time that they got married. Additionally, spouses point to a lack of legal representation and/or an imbalance in sophistication between the parties as the basis for a duress attack. As mentioned above, this is why it makes sense to ensure that the process of drafting and signing the prenuptial agreement is done above board and with a measured approach. If both sides have access to legal counsel and plenty of time is afforded to review the terms, a duress can be attacked.
Unfairness and Lack of Proper Disclosure
If you hide your assets or fail to properly disclose assets or liabilities, you are setting yourself up to have the prenup voided. This is done through a “Motion to Set Aside the Prenuptial Agreement” and a court may grant the motion if evidence exists that you failed to tell your spouse about your assets prior to having them sign the agreement. Remember, full disclosure is always the best strategy.
Contact an Experienced Lawyer Today
Vanessa L. Prieto knows how to properly draft thorough, well-considered prenuptial agreements for couples of all backgrounds and income levels. Contact the office today to set up a time to talk about your legal needs.