Prenup Mistakes: 7 Common Things to Avoid In Texas
The number of couples opting for prenuptial agreements has multiplied by five over the last two decades.
Nobody enters marriage with the intention of getting a divorce. Sadly, however, many couples do end up going their separate ways.
No matter how confident you are about the future of your relationship, you need to protect your interests.
Read on as we list the seven most common prenup mistakes, and learn how you can avoid them.
Preparation for marriage is a busy and stressful process. There are many things to organize, and the (somewhat unromantic) ordeal of putting together a prenuptial agreement can quickly fall to the bottom of the list.
Allowing this to happen is a mistake, for a couple of reasons.
Firstly, a prenup is an important contractual agreement. You want to give yourself time to consider all its contents, and make sure that you are both happy with it. The less time you give yourself to do this, the more likely it is that the agreement will contain a flaw.
Secondly, a prenup signed too close to the date of your marriage might be construed by a court as involving duress.
To avoid issues, leave yourself plenty of time. Try to have everything finalized and the document signed three months in advance of the big day.
2. Failure to Seek Proper Representation
A prenuptial agreement might seem straightforward. However, in reality, it is a complex legal document, which requires competent oversight from a professional.
The first thing to be aware of is that both parties need independent representation. You cannot use the same lawyer as your partner.
Both lawyers must make their clients aware of the implications of the agreement. it must be clear to a judge that there has not been a failure in this regard, or the agreement might be rendered void.
To ensure that you’re not let down in this way, choose a lawyer with proven results in divorce proceedings.
3. Use of Duress
There are many situations in which one party to the marriage is less keen on the prospect of a prenup than the other. This might be because they are uncomfortable with the idea, or simply because they have less to protect.
If you’re trying to convince your partner to sign an agreement, be careful. While you’re permitted to state your case fairly and objectively, you’re not allowed to force them into anything.
If a court finds evidence of duress, they may rule that your prenup is void. If you enter a prenup with far more to lose from a divorce than your partner, duress is one of the first things the opposing counsel will consider for use in court.
Therefore, if your partner does need a little persuasion, be very careful about the methods you adopt. Anything that a court would judge to be coercive is unlawful, and will nullify the agreement.
4. Inclusion of Unenforceable Terms
A prenuptial agreement has the power to protect you from many things. However, there are certain terms you cannot legally include.
For instance, a court will not enforce a term relating to the performance of any sexual activity or the division of household chores.
If you want to reach an agreement on matters like these, you’ll have to do so privately. A court will not step in to enforce something like this.
Ordinarily, a court can enforce the rest of a prenuptial agreement and simply leave a provision like this aside if the need arises. However, if there are broader disputes as to the legitimacy of the agreement, the presence of something like this can raise doubts about the circumstances in which the agreement was reached.
To mitigate this risk, make sure that everything you include is clearly enforceable.
5. Failure to Disclose Relevant Material
Full and frank disclosure is one of the key elements of any legal agreement. If you leave out some fact which later comes to light and is crucial to the case, a judge is far less likely to find in your favor.
The key things you need to share information about during the agreement process are your assets, your debts, and any properties you own.
Even if you neglect to mention something by accident, this can harm your case. You must therefore be entirely diligent when making records of your assets.
6. Attempting to Make Provisions in Relation to Children
One of the most important considerations in relation to any divorce is the arrangement you come to regarding the care and support of your children. It is only natural that you would want to consider this before it arises in the context of a divorce.
Unfortunately, the law on prenups doesn’t allow for this. Courts consider provisions in relation to child custody or child support to be contrary to public policy.
The reason for this is that the interests of children are paramount in a divorce case. A judge will disregard any factor other than these.
No matter what kind of contract you’re signing, you need to be clear and precise in the terms you include. A judge cannot give effect to something that isn’t certain.
For instance, terms like “the bulk of my estate” or “some of my art collection” will not provide sufficient certainty.
Your lawyer will help you avoid this pitfall by drafting your agreement with unambiguous language.
Avoid Common Prenup Mistakes & Face Your Future With Confidence
The most common prenup mistakes share two characteristics.
Firstly, they are all potentially detrimental to your wealth and family life in the event of a divorce. Secondly, they are all completely avoidable.
With a clear approach and a talented lawyer on your side, you’ll have no trouble.
If you’d like to talk about drafting a prenuptial agreement, or you have a question about any of the services we offer, contact us today.