Avoiding the Most Common Prenuptial Agreement Mistakes
Prenuptial agreements have become relatively common as social acceptance of these contracts has increased. People often want legal protection when they enter marriages with pre-existing property, plan to deprioritize their careers to have children or are about to start a blended family. Prenuptial agreements reduce the likelihood of a contentious, litigated divorce, but only if they are properly crafted.
Common mistakes can undermine the legal protection a premarital contract offers by allowing for a challenge in family court later, where a judge might invalidate the agreement.
One major mistake is failing to have proper legal representation for both parties during the negotiation process. Couples often assume that as long as a lawyer drafts the agreement, the prenup will serve its intended purpose in the event of a divorce. However, an attorney cannot prioritize the best interests of both people in a contract negotiation scenario. The spouse who did not initially retain the lawyer might be able to claim later that they did not understand the terms of the agreement if they do not have their own lawyer to assist them with the review of the agreement and the negotiation of appropriate terms.
The inclusion of unconscionable terms is another major flaw in some agreements, and that can be sufficient grounds for future invalidation. This problem is often seen in cases where one party has more property or income to protect than the other. They might demand protections and concessions so that they can enter the marriage with confidence. That is acceptable unless the terms of the agreement end up lopsided and unfair. An unfair or unconscionable prenup may be an unenforceable one. If each party does not receive appropriate protection and valuable consideration for any concessions they are expected to make, the courts may determine that the contract is so imbalanced that it is invalid.
There are a handful of other scenarios that can potentially lead to the invalidation of a prenuptial agreement in the early stages of a divorce. Credible claims that one prospective spouse signed the agreement while under duress, without adequate time to review it, could prompt court review. Courts may also decline to enforce an agreement that primarily focuses on personal relationship matters rather than the practical aspects of divorce.
An experienced attorney can help reduce the likelihood of mistakes and oversights when a prenup is drafted that might lead to complications in the event of a divorce, protect your interests during negotiations and conduct a final review of a prenuptial agreement for fairness and completeness before it is signed.
The Law Office of S. Mark Mitchell, LLC in Newnan helps Georgia residents negotiate, draft, review and enforce prenuptial agreements. Schedule an initial consultation by calling 470-344-8550 or contacting me online.
