You may think your prenuptial agreement is ironclad and will safeguard your assets in the event of a separation or divorce. However, not all prenuptial agreements are enforceable.
An experienced divorce attorney will know how to enforce prenuptial agreements for residents in Alpharetta, GA.
The court views a prenuptial agreement as a contract between two parties.
The enforceability of this depends on whether explicit and unambiguous language is used in the document and the circumstances surrounding the agreement’s execution.
PRENUPTIAL AGREEMENT VERBIAGE
The agreement should specify what rights and obligations each party has in terms of asset ownership prior to and acquired during the marriage. Financial assets acquired prior to the marriage should be detailed in the agreement or attached to the document.
Each party has to clearly understand what they are agreeing to and what rights they are forfeiting when they sign the agreement.
The agreement should include an acknowledgement that each party has read the agreement and understands its terms. This will make it more difficult for one party to later claim the agreement is unfair or inequitable.
If the language in the document is clear then it is presumed that the party understood what they were signing.
CIRCUMSTANCES SURROUNDING PRENUPTIAL AGREEMENTS
The enforceability of a prenuptial agreement is also contingent on the circumstances surrounding its execution.
It must be clear that both parties had enough time to review the document with an attorney before the marriage. The agreement should be drafted and signed well before the marriage.
The length of time needed to draft a prenuptial agreement depends on the complexity of each party’s financial assets and whether there are any children from previous marriages.
Sometimes there is a significant level of negotiation involved in drafting a prenuptial agreement. Therefore, using generic, pre-printed prenuptial agreements from websites is not recommended.
Both spouses must have different attorneys. If one attorney offers legal advice to both parties, the agreement will be deemed invalid. The agreement should state that each party either had legal counsel or waived their right to legal counsel.
The agreement must be entered into without coercion or duress or under fraudulent pretenses.
A spouse can challenge the validity of a prenuptial agreement at the time of a separation or divorce.
The challenge will go before the court and the judge will evaluate any evidence presented and the credibility of any witnesses called to testify. After reviewing the facts the judge will decide if the agreement is enforceable.