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Why Do Judges Throw Out Prenups? Prenuptial Agreements MUST Be Fair In Order To Be Valid.

Prenups have a terrible reputation.

There's a lot of hoopla in pop culture about prenuptial agreements; that they're utilized primarily by older, rich men to bar their revolving doors of younger wives from receiving a dime when things inevitably end in divorce. While that’s how the (fiction!) media has portrayed prenups, the chances of that sort of prenup being upheld in a real-life court is slim. The validity of prenups depends on several factors weighed in the light of individual circumstances.

In order for prenuptial agreements to be valid in court, if ever challenged, they must be fair.

The question then becomes: "What makes a prenuptial agreement fair?"

There are FOUR main areas in which the prenup must be fair:

1. Financial disclosures are required during the process of drafting a premarital agreement. Both parties must have been provided a FAIR, reasonable, and full disclosure of the property and financial obligations of the other party. If financial disclosures were not provided, a court will NOT deem it a fair prenuptial agreement and it can be thrown out.

2. The party seeking to challenge the prenuptial agreement must have had adequate time (usually 7 days) to seek independent counsel or to waive their right to independent counsel. If independent counsel was waived, that party must have been provided, in writing, an explanation of their rights to be fully informed of the basic effects of a prenuptial agreement.

3. Both parties must voluntarily enter into the prenup. One party cannot and should not attempt to coerce, bribe, or otherwise force the other party into signing the prenup.

4. Because a prenup is intended to protect the interests of both parties, enforcement of its terms cannot leave one party completely desolate in the event of a divorce. The prenup should consider and plan for a reasonable future.

Pro Tip:

It's healthy and advisable (for your relationship and for your finances) to revise and modify your marital agreement in the form of a postnup (postnuptial agreement). This will keep your agreement relevant and valid as time passes and circumstances change.


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