Prenuptial agreements are used to make decisions about property, finances, and other matters during the course of a marriage, as well as decisions related to the division of assets and alimony at the time of a divorce. However, merely writing down your intentions for these matters does not mean that the prenuptial agreement will be valid; instead, there are basic prerequisites that should be satisfied in order for a prenuptial agreement to be valid. Consider these four elements of a valid, enforceable prenuptial agreement, and call the Law Office of Heather M. Ward to learn more.
One of the most important elements of a valid prenuptial agreement is that of disclosure. The disclosure provision essentially means that both parties agree to disclose financial statements that detail all assets and liabilities. If property, assets, and debts are not appropriately disclosed at the time that the prenuptial agreement is executed, it may later be rendered invalid by a court.
Fairness and Independent Counsel
The second important element of a valid prenuptial agreement is that the agreement is fair and conscionable. That being said, “fairness” may look different in different situations; however, at no point should the agreement have any provisions that are unconscionable, or unreasonably excessive. For example, a court may find it unconscionable for one party to completely forfeit their right to any property or spousal support award in the event of a divorce. In Massachusetts, the specific requirement is that a prenuptial agreement is “fair and reasonable” at the time of creation and at the time of divorce.
One way to ensure that an agreement will be found fair and reasonable by a judge at the time of a divorce is for each party to the agreement to be represented by their own attorney at the time the agreement is signed.
No Duress or Coercion
In order for a prenuptial agreement to be valid, each party must enter into the agreement of their own free will. If there is any evidence of duress or coercion, the agreement may be rendered invalid. Again, one way to safeguard against this is to ensure that each party to the agreement is represented by independent counsel, as all lawyers are fiduciaries and have a duty to act in their clients’ best interests and in good faith.
Logistics: In Writing and Signed in the Presence of Witnesses
Of course, in addition to the above elements, a prenuptial agreement will not be valid if it is not in writing and signed by both parties. It is always beneficial to have the agreement witnessed and notarized, too.
Call Attorney Heather M. Ward Today
If you have questions about creating a prenuptial agreement or the enforcement of a prenuptial agreement at the time of divorce, call the Law Office of Heather M. Ward for the legal assistance you require. You can reach Attorney Heather M. Ward by sending a message online, or calling our office directly at (617) 903-8955.