One of the difficulties in encouraging people to get a prenuptial agreement is trying to guarantee its enforceability. There are some nuances that could cause parts of the pre-nuptial agreement or even possibly the entire agreement to be null and void. However, as more people are getting prenuptial agreements and they are being brought before the courts during divorces, attorneys are finding better ways to ensure that the terms of the agreement are upheld. Some common factors are:
1.) Full Financial Disclosure: Make sure both parties list all of their assets and debts in the prenuptial agreement, this helps to determine the conscionability of the agreement at the time it was written. Since a lack of disclosure opens the door to a potential argument to set aside the agreement, full and accurate mutual financial disclosures are imperative.
2.) Making sure the agreement is not unconscionable: Full disclosure of assets and debts and clear and conscience reasons as to why the agreement was written as it was, helps to show the court that the agreement was conscionable when written and entered into.
3.) Allow Sufficient Time: It is important to make sure each party had enough time to review, revise and understand the agreement, and that this was a significant time prior to the marriage ceremony. It is important to have ample time to educate both parties on all aspects of the agreement to ensure consent is knowing and voluntary, as well as to make revisions requested by one of both parties.
4.) Recording the Execution of the Agreement: Some attorneys are now encouraging their clients to videotape the signing and reading of their pre-nuptial agreement. Although this can be awkward and tense, it is a practicable way to verify the validity and understanding each party had as they entered into the agreement.
5.) Independent Legal Counsel: Make sure each party is represented and counseled by separate legal counsel. This helps to show the Court that each party was fully informed regarding the terms and legality of the agreement they entered into as it related to them.
Although you can never ensure 100% enforceability, taking steps such as those listed above, at least strengthen your argument as to why the prenuptial agreement should be upheld as written.