When spouses realize that it is time to file for divorce, it may seem like a blessing that they chose to create a prenuptial agreement, if they have one. However, simply having a prenuptial agreement in place does not guarantee that a judge will honor it, depending on the nature of the terms in the agreement and the way the spouses created it.
If the agreement is not well-constructed or includes terms that the law does not support or allow, the agreement itself may not withstand scrutiny. It could actually complicate your divorce rather than simply it. If you have concerns about your own prenuptial agreement and its ability to remain valid throughout the divorce process, it is important to carefully review the document and look for any mistakes or provisions that may cause trouble. An experienced attorney can offer professional guidance during this process, and help you understand the strongest options you have to protect your rights and priorities in the divorce process.
Errors in creation and execution of the agreement
If a prenuptial agreement is not carefully constructed, a judge or even the other spouse may push it over like a house of cards. Even if all of the provisions of the agreement are reasonable, sloppy creation of the document or outdated, inaccurate information and terms may nullify some or all of the terms. This can create a major hassle and raise costly questions.
A judge may also toss out an agreement that one party or the other signs under duress or without sufficient time to consider and seek proper legal guidance. Even seemingly small errors like forgetting to sign the document may present significant problems. Be sure to consider all aspects of the agreement -- and how you created it -- before assuming it will withstand scrutiny.
Illegal or unfair terms
Even if the document is created properly, if it contains provisions that the law does not support, it is likely to get tossed out of court. This may include illegal provisions that deal with criminal acts, or simply terms that attempt to predetermine issues like child support and child custody.
Child support and custody issues are not left up to parents, although a court may hear the parent's preferences in these matters. However, attempting to include provisions that dictate custody may not stand up if the court does not believe that the terms are in the child's best interest. Child support is strictly determined by courts upon reviewing the needs of the child and the resources of the parents.
It is always wise to carefully look over your agreement to help you anticipate problem areas. Do not hesitate to use every tool you have at your disposal to protect your rights and priorities in divorce, whether you have a prenuptial agreement in place or not. Professional legal counsel can help you assess your circumstances and create a strong strategy to achieve your divorce priorities.