A lot of spouses enter into marriage fully confident that they have protected themselves — and their financial situation — with a prenuptial agreement. However, not all prenuptial agreements will hold up in court, so it’s important for future spouses to educate themselves on what constitutes a valid prenup.
For one thing, both you and your soon-to-be spouse will need be represented by separate legal counsel when drafting your prenuptial agreement. A prenup is, after all, a legal and binding agreement. If one party is unrepresented by a lawyer, he or she could later claim ignorance of the terms of the contract due to not having a sufficient legal background to understand it.
What else does a valid prenuptial agreement require?
In addition to having both parties in the marriage represented by a lawyer, the prenuptial agreement must satisfy the following six requirements:
- The document must be a written agreement. Unlike other kinds of contracts, in which a court might accept a verbal agreement, North Carolina courts will not accept a verbal prenuptial agreement to be valid.
- Execution of the document must be voluntarily. No coercion of any kind can go into the execution of a prenuptial agreement. One sign of coercion might be the element of surprise. For example, if a spouse ends up signing a surprise prenup on the day of the wedding, a court will probably reject it.
- Both parties need to fully disclose their financial situations before signing. If a spouse is concealing hidden assets or hidden debts at the time of signing, it could trigger the invalidation of the prenup at a later time.
- Prenups need to be conscionable. If a prenuptial agreement appears to be unfair and severely disadvantages the other spouse, then a court will likely not accept the agreement.
- Both parties need to sign the document, and it’s best to do so with a witness or notary present. To be extra sure that the document is valid, some lawyers recommend their clients to sign their prenuptial agreement in front of a judge as the witness. This helps prevent another party from later saying that he or she was the victim of coercion.
- Prenuptials must be formatted appropriately. Your prenuptial agreement should be in a recordable format similar to a real estate deed.
Be sure to know the full requirements for your prenup
The above requirements are by no means exhaustive. However, they are some of the most common points on which the typical prenuptial agreement may end in nullification by a court. Each prenuptial agreement is a unique document tailor-made to suit the specific needs and wishes of the spouses involved. As such, it’s best to play things safe and learn as much as you possibly can about this family law topic before entering into an agreement you later learn to regret.