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Will your prenuptial agreement really protect you?

These days, it is wise for every couple to create a prenuptial agreement, no matter how opposed they are to divorce or how few resources and assets they have when the marriage begins. A strong prenuptial agreement protects both parties from emotionally motivated decisions in the divorce process and can even protect spouses from each other's debts whether divorce occurs or not.

However, not all prenuptial agreements are created equal. Having some form of prenuptial agreement is better than none at all, but many of these have weaknesses that one side or the other may exploit. If you are ready for divorce, make sure to review your prenuptial agreement carefully to understand its limitations and identify any areas where it may not hold up in court if your spouse challenges it.

What makes a prenuptial agreement weak?

There are several ways a determined spouse may undo a prenuptial agreement. Broadly speaking, these weaknesses exist in three areas:

  • Improper creation
  • Weak legal language
  • Illegal or unconscionable provisions

During the creation of the agreement, both parties must have a reasonable understanding of the legal issues at hand and must not agree to terms under unfair or illegal pressure. A prenuptial agreement is also, by definition, created before the couple legally marries. While it is possible to create a post-nuptial agreement, these do not typically offer all of the same protections.

Like any legal document, language is key. If a prenuptial agreement contains contradictory or vague language, or if it includes terms that are not well written, a talented attorney may find ways to exploit these weaknesses and defeat the agreement partially or entirely.

Finally, if the agreement contains illegal provisions, such as restrictions on custody rights, then a court will almost certainly dismiss it. Similarly, if an agreement treats one party drastically less amenably than the other, a court may see this as unconscionable and refuse to uphold it.

Protecting your rights now and in the future

Divorce is a strange and often painful transition, but a strong prenuptial agreement can help keep the experience as amicable and mutually beneficial as possible. As you move out of marriage and into a new season of life, it is important to make sure that you have a strong legal strategy. With a clear understanding of your priorities and a good handle on your prenuptial agreement, you can keep your rights secure as you transition to the next season of life with dignity.

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