Pre-nuptial Agreements (Pre-Nups) are designed to determine what happens in the event of death or divorce after marriage. Often Pre-Nups are prepared where there is a significant difference in assets between the two prospective partners. The Pre-Nup may never be used or it may be utilized whether a short time after marriage or perhaps 20 years later. So avoiding mistakes is an important goal. As one lawyer said there are no guarantees unless there is no marriage. However, there are steps to take to avoid the successful challenge of the Pre-Nup.
1. Pre-Nups to be valid must be clear. A lack of clarity leads to a challenge as to meaning and interpretation.
2. Pre-Nups should be signed significantly in advance of the wedding so that there is no claim of duress, coercion or lack of choice due to the wedding rapidly approaching. It is a good idea to discuss with your partner prior to even the first draft. Avoid surprises.
3. Financial Disclosure is critical so that each side has familiarity with the type of assets, value (unless unknown), standard of living, current income, debts, interests in business whether family or public, trust agreements and other financial resources. All assets/debts that are intended to remain separate should be identified.
4. It is preferable that both sides have attorneys so that the provisions are explained, negotiations take place, revisions are possibly made, and the basic safeguards to avoid coercion and lack of disclosures have taken place. Do not have one attorney try to be a neutral and draft as it will almost certainly be challenged.
5. Often it is a good idea to make sure that the weaker party is never left without resources. It is better to provide some benefits rather than none or so little that a person cannot support themselves. Better to make some provisions and have the Pre-Nup survive than to be so overbearing that the court on a challenge finds it "unconscionable".
6. Provisions for spousal support or the lack thereof should be clearly stated. How marital assets will be divided can also be set forth. Appreciation in pre-marital property during the marriage can be limited.
7. Sometimes it may be a good idea to discuss the terms with other members of your family especially if there are adult children from a prior marriage and the children are suspicious of the intentions of the intended spouse.
Finally having experienced matrimonial attorneys that are custom drafting for your particular needs is important. There may be standard provisions but not standard agreements.