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Mistakes to avoid when you need a prenuptial agreement

On Behalf of | May 28, 2024 | Divorce

Deciding to marry the love of your life is a major life event. While most people hope and assume their marriage will last forever, it is always best to be prepared for other possibilities. Having a prenuptial (or premarital) agreement before you get married can help to protect you and your future spouse. 

A prenuptial agreement is a legal document that outlines specific things about what will happen if you get a divorce. It’s important that this document covers a host of factors, but you must ensure you don’t make these mistakes because they may render the agreement unenforceable. 

Mistake 1: Favoring one party

Prenuptial agreements cannot overly favor one party. Instead, it should be set up in line with what each person will have going into the marriage and be balanced is setting out what would happen in the event of a divorce. Courts can refuse to uphold a prenuptial agreement that is clearly one-sided. In Virginia, one way parties preemptively avoid this issue is by exchanging full financial disclosures prior to signing a prenuptial agreement. Virginia law requires these disclosures, which allow each side to better understand what assets are at issue, what he or she may be waiving interests in (or receiving interest in), and so forth.

Mistake 2: Presenting it too close to the wedding

Each person signing the prenuptial agreement should have time to review it and discuss the terms with a legal representative of his or her choice. With this in mind, it is best that a prenuptial agreement is not presented right before the wedding. While there is no set timeline on what constitutes “too close” to a wedding, you want to avoid any allegations of duress or undue influence related to timing. It is best to begin these conversations with your prospective spouse as soon as possible, and begin the prenuptial agreement drafting and financial disclosures many months before you are set to say, “I do.”

Mistake 3: Including forbidden terms

There are some matters that cannot be included in prenuptial agreements. One important thing to avoid ever putting into a prenuptial agreement is terms related to child custody or child support. Those decisions must be made based on what are in the children’s best interests at the time of the separation and divorce, so they cannot be pre-determined. A court will not bind itself to determinations about custody or child support found in a premarital agreement.

It’s best for anyone who needs the protection of a prenuptial agreement (or postnuptial agreement) to work with someone who can help them to ensure they have everything in order. Taking care of this as soon as possible gives both parties ample time to ensure the terms are actually agreeable.

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