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6 ways to ensure the validity of a prenuptial agreement

"To a Mouse" is a poem written by Robert Burns in 1785. In this poem, he said, "The best laid schemes of mice and men go often askew, and leave us nothing but grief and pain, for promised joy." If you're one of the many individuals who've signed a prenuptial agreement, only to have a court invalidate the document in divorce court, then you are too familiar with the sentiments of this poem.

Many prenuptial agreements lay in ruin as ineffective wastes of time, but this doesn't need to happen with yours -- if you create it and execute it in the right way.

The right way to draft a prenuptial agreement

To ensure that effectiveness of your prenuptial agreement, you'll want to make sure that the following is true for your premarital agreement:

  • Both you and your soon-to-be spouse have representation from a separate lawyer who will review the proposed prenuptial agreement, assist in drafting it and advise each side.
  • Your prenuptial agreement must be written. Oral agreements are not likely to hold up in court.
  • Both sides executed the prenuptial agreement without the threat of coercion and voluntarily with plenty of time before the marriage. Signing the prenuptial agreement only days before marriage should be avoided at all costs.
  • The parties must fully disclose all of their assets and liabilities to one another prior to signing.
  • The prenuptial agreement is conscionable. This means that it is fair and treats both sides of the agreement in a balanced fashion.
  • Both parties executed the prenuptial agreement, and it was preferably done before a notary or witnesses. The preferred way of signing the prenuptial agreement is before a judge.
  • You may also want to draft the prenuptial agreement in a "recordable" format, which is how real estate deeds are done. Your attorney can explain this further.

Make sure you draft and sign your prenuptial agreement with care

Since a prenuptial agreement comes with many benefits for spouses, it's important to take great care to draft and sign this document appropriately. Adhering to the six points above will help ensure that your prenup is not subject to invalidation, but spouses will also need to draft their prenuptials in a way that reflects their unique situations.

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