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Law Office of Gary R. Swavely, Jr. Blog

Wednesday, June 28, 2017

Top 5 Mistakes People Make With Prenups

A prenuptial agreement or “prenup” is a contract a couple makes before marriage that sets out certain expectations and requirements during the marriage or in the event of divorce. A prenup can help strengthen a relationship by making certain expectations clear and improving communication between the couple. It can also help protect financial or family interests, particularly when two high net worth individuals marry or when one or both of the new spouses has children from a previous marriage.

To create a prenup that works, however, you’ll need to avoid major pitfalls. Seeking the advice of a skilled marital agreements lawyer is a good first step. In the meantime, take a look at the top five mistakes couples make with prenuptial agreements.

  1. Failing to create a valid contract.

    A prenuptial agreement is a contract—a legal document. To be enforceable, then, the prenup must meet the legal requirements for a contract. For instance, the prenup must include “consideration” (both parties get something in exchange for agreeing to the contract) and it must be made under conditions free from duress.
  2. Signing it too soon before the wedding.

    With all the work to do to plan your wedding, signing your prenup can fall to the bottom of the list. The longer you postpone signing your prenup, however, the easier it is for your spouse to claim they were forced to sign under duress and that the prenup is not valid as a result. Talk to your lawyer about the best time to create and sign a prenuptial agreement, and plan to do so several months before the wedding itself.
  3. Attempting to make the prenup do things it cannot legally do.

    For example, some states prohibit prenuptial agreements that state one or both parties will not pay spousal support (alimony) in case of divorce. Typically, provisions for child custody in prenuptial agreements will be viewed with skepticism as well, because custody arrangements are based on the child’s best interests—which may not align with the plans in the prenup. And just like any contract, a prenuptial agreement cannot require either party to do something illegal.
  4. Including unenforceable terms.

    Some contract terms aren’t illegal, but they cannot be enforced by a court. In prenuptial agreements, the most common example are agreements to perform certain chores or to have sex a certain number of days each week or month. While the couple can work these agreements out in private, a court typically cannot or will not enforce them.
  5. Creating a prenup without a lawyer.

    Courts are more likely to look skeptically at a prenuptial agreement if the parties created it without legal representation. As with any contract, it is best to work with an experienced attorney if you plan to create or sign a prenup. Your lawyer can make sure that all necessary financial and other information is disclosed, that you fully understand the agreement, and that you freely accept its terms.

If you’re considering marriage (or divorce), an experienced Pennsylvania family law attorney can help you understand your legal rights and options and build the best course for your future. Consult with a Pennsylvania custody attorney today.


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