How to Get a Prenuptial Agreement

Getting a prenup agreement itself may be complicated due to societal attitudes on the issue but that is not as difficult as getting one that is properly structured and will be upheld in the courts.

The most important thing in getting a prenup is making sure that the agreement meets the required elements and will be interpreted fairly for each party.

Creating the Prenuptial Agreement

Knowing how to get a prenuptial agreement is the first step in making sure the agreement will be legally enforceable. Both parties have to sit down and figure out all of their financial assets and liabilities for disclosure. The parties must also decide whether each feels comfortable disclosing this information to the other person as well as engaging in the process of creating the prenup agreement.

If one party does not feel comfortable disclosing financial assets and liabilities or with signing the agreement on his or her own free will, the prenup will be unenforceable in any jurisdiction. The prenuptial agreement must also be in writing and notarized by a notary public.

Ideally, both parties will have a negotiation on each of the prenup's terms and arrangements. The prenuptial agreement is supposed to be created by two people who have equal bargaining power and decision making authority over what goes into the agreement. Both parties should be represented by legal counsel and ideally, legal counsel will help the parties create a legally sound agreement tailored to the needs and expectations of each party.

Validity Issues

Once the agreement has been created between the parties and all sides agree to its terms, the agreement must be in writing and signed by both parties before a notary public. Once this happens, the agreement will exist and is likely to be enforceable by a court.

But what if one party did not have equal bargaining power? What if there are hidden assets or liabilities that were not disclosed in the prenuptial agreement?

In that case, the court will have to consider the issue and decide whether the particular clause at issue or the agreement as a whole is enforceable. If a party did not disclose all of his/her assets, the agreement will not be enforced.

This is because the hidden information may have influenced the other party to act differently if it had been known at the time and the agreement was not based on equal bargaining power. Courts do not want to encourage spouses or intended spouses to lie to each other or perpetuate bad marriages. Courts want to encourage good marriages based on truth, honesty and equality for both parties.

Those aims are also why an agreement so unbalanced or created in such a way as to make the court declare it unconscionable will not be enforced. An agreement's terms and the manner in which it was created have to be extremely terrible and grossly unfair to a party before the court will brand it unconscionable.

Having an agreement become unenforceable because of unconscionability is rare.

At the same time, prenuptial agreements should be completed far in advance of the wedding date and not left to the last minute. If you want the agreement to be enforceable, each party needs a meaningful amount of time to consider it and make an informed decision to agree to it.

Getting Legal Help

It is extremely important to have an experienced lawyer in your state on hand to assist in the creation of a prenuptial agreement. Not having one can make the difference between having an enforceable agreement and losing considerable assets to an ex-spouse in property division.

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