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A prenuptial agreement form is typically filed in the state you are currently living in. It should be filed with your county's clerk office so that it's on public record before the wedding. A prenuptial agreement is normally used in situations where one or both parties: has significant wealth or expects to receive a large inheritance, has a personal business, wish to keep all assets and debts separate, were previously married, and/or have children from a previous relationship. It is recommended that both parties consult with an attorney to ensure it is entered into fairly and knowlingly and minimize the possiblility that it may be challenged at a later date.
It can be used to accomplish many legal and financial objectives, but in general couples use it to protect separate property (a family business, for instance), support an estate plan, define what is marital or community property, reduce conflicts and save money in the event of divorce, and establish procedures for deciding future events.
In the enforcement of premarital agreements, there are three main issues that are typically addressed by a court if the agreement is challenged:
a. Was the agreement entered into voluntarily;
b. Did the parties have the opportunity to have the agreement reviewed by counsel of his/her own choosing; and
c. Was there full disclosure of all assets, liabilities and income?
If these three items can be proven, then the burden to set aside the agreement shifts to the other side (with a higher burden of proof) and the primary focus will be on whether the agreement was "unconscionable" at the time of enforcement, which shall be determined by the court as a matter of law.
A prenuptial agreement may be declared invalid under the following circumstances:
a. Unconscionability. A premarital agreement must be fair and reasonable. A premarital agreement can't cause financial hardship to the other party. Unconscionable contracts are often found to be invalid in the courts.
b. Both parties didn't have independent counsel. Each party must have his or her own lawyer. Many people mistakenly believe that they can have one lawyer represent both of them. However, each party must have his or her own legal counsel. A lawyer must make it clear to the unrepresented party that he or she does not represent him/her, and further advise them to obtain their own lawyer.
If a party needs to have the document translated due to language barriers and is prevented from doing so, this may lead to a challenge based on a lack of understanding and/or duress that prevented a fairly and knowlingly made agreement.
c. The agreement has incomplete information. There must be full disclosure when negotiating a premarital agreement. Quite often a person will try to hide some assets when he or she negotiates. If a person does not make full disclosure during the negotiation of a premarital agreement, there can eventually be strong grounds to void the agreement.
d. The agreement has false information. A premarital agreement can't be based on false and misleading financial information. A person must make full disclosure during the negotiations.
e. Invalid provisions. A premarital agreement can't limit child support or any other child support-related areas. If a premarital agreement contains clauses that try to limit child support or child support-related areas, then that specific clause will be invalidated. In most cases, the court will only strike the illegal clause, and enforce the remainder of the premarital agreement, provided that it is fair and equitable.
f. Reasonable time for consideration. The prospective spouse who is entering into a premarital agreement must have a reasonable amount of time to adequately review it. It would not be wise to give a prenup to your prospective bride or groom the day before the wedding. These agreements must be thoroughly reviewed and considered.
g. Undue pressure. Premarital agreements are often challenged once the parties get divorced. One of the most popular challenges to a premarital agreement is an allegation that a person was pressured by his or her spouse, the lawyer, or the in-laws to sign the prenup.; Some attorneys suggest that the signing of a prenup be videotaped.
h. No written agreement. All premarital agreements must be in writing. An oral premarital agreement is not enforceable.
The following are the essential requirements that must be satisfied in order for a premarital agreement to be upheld:
a. There must be full and fair disclosure of the earnings, property, and financial obligations of the parties. A complete and comprehensive financial statement must be attached to the agreement that sets forth the parties' earnings, property, and financial obligations. A CIS should also be attached to the agreement.
b. Both parties should be represented by attorneys. A premarital agreement will likely not be enforceable if the other party did not consult with an attorney, or did not waive the right to do so in writing.
c. The agreement must not be unconscionable. An unconscionable premarital agreement is defined as an agreement that would leave a spouse as a public charge or close to it.These situations are as follows:
(i) When a spouse is rendered without a means of reasonable support.
(ii) When a spouse becomes a public charge.
(iii) When a spouse is provided a standard of living far below that which was enjoyed before the marriage.
It is critically important that all parties have adequate time to review and sign a premarital agreement. A period of six to eight weeks should provide the parties with enough time to negotiate an agreement and allow everyone to reflect upon its terms at their leisure, without feeling undue pressure. While six to eight weeks is ideal, this does not mean to suggest that an attorney cannot successfully complete a premarital agreement in less time. If there is a short period of time for the preparation and negotiation of the agreement, it may be stated in the body of the agreement that the parties recognize that they have come to an understanding within a limited period of time, and feel that the time frame did not in any way affect their ability to freely and voluntarily enter into the agreement or cause them to do so under any coercion, duress, or undue pressure.