What Makes A Prenuptial Agreement Valid?

  1. Honesty. There must be a full and complete disclosure of all financial information.  A prenuptial agreement may be ruled invalid on the basis of fraud if one person (particularly the wealthier one) deliberately withholds or misstates his or her financial condition. Write an inventory of the valuable assets you and your future spouse wish to maintain as separate property. Each asset should have a legal description, if required. For instance, if you own stock, make sure you have your stock certificate numbers and description of the stock. If you own a home, you will need the legal description, such as the tax/property id number or lot number. You can obtain this from your home loan papers, title insurance documents or deed.

  2. The agreement must be "fair" and not leave one of the parties destitute.

  3. The prenuptial agreement cannot increase the likelihood of divorce (for example, by providing for a large alimony amount in the event of divorce)

  4. The prenuptial agreement cannot limit or waive rights to child support.

  5. Generally, a blanket waiver of spousal support (alimony) is acceptable, however, specific spousal support agreements (example: the spouse will receive $3,000 per month in the event of divorce) are more problematic and can be difficult to uphold. A few states such as California, do not allow premarital agreements to modify or eliminate the right of a spouse to receive court-ordered alimony at divorce if the party was unrepresented by independent counsel at the time the agreement was executed or if the provision is unconscionable at the time enforcement is sought. In addition, parties must be represented by counsel if spousal support (alimony) is limited.

  6. To avoid the appearance of coercion, the prenuptials should be signed as early before the wedding as possible.  A month or two will suffice.  Some courts have rendered agreements signed immediately prior to the marriage ceremony invalid for this reason.

  7. Avoid making demands that might seem frivolous, such as requiring that your spouse keep their hair cut a certain length, or that he or she dress a certain way. Frivolous demands can lead to the entire agreement being set aside.

  8. Both parties must demonstrate they truly know what they are agreeing to. Take additional steps to illustrate the knowledge of each party about the agreement.  Place each person's initials on pages with key provisions, such as the provisions of the prenuptial agreement pertaining to disclosures of assets, distribution of property, and support.

  9. Avoid "undue influence". Undue influence involves one person taking advantage of a position of power over another person. To prevent the appearance of undue influence, each party should consult with an attorney of their own choosing before signing the prenuptial agreement (neither party should select or pay for the other party's attorney). This will go a long way in reducing claims of "undue influence" in the event a prenuptial is ever challenged. The cost of the attorney consultation should be minimal if your prenuptial agreement is already prepared.