Engaged couples may agree that they need the protection of a prenuptial agreement. People who have already married one another may also decide that they need a marital contract. Postnuptial agreements can give people access to many of the same protections as prenuptial agreements during marriage.
Unfortunately, couples don’t always secure the protection that they expect, especially if they try to handle the marital agreement on their own. They might download documents from the internet that don’t align with state statutes or may establish terms that eventually compromise the validity of the document when they need it the most.
What steps can those drafting prenuptial or postnuptial agreements take to ensure that their agreements hold up under scrutiny in the future?
1. Securing separate representation
Trying to draft a prenuptial or postnuptial agreement without an attorney can be dangerous. So can the decision to use just one lawyer.
The strongest marital agreements undergo review from lawyers representing each spouse. That way, each spouse has a professional available to review the document based on their best interests. Such arrangements protect against claims that one spouse didn’t understand what they signed.
2. Creating a balanced document
Frequently, one spouse may want a prenuptial or postnuptial agreement more than the other. They may want to protect an inheritance or a small business. Agreements generally need to extend relatively even protections to both spouses.
Each spouse should receive something valuable from the agreement, and each spouse may need to make certain concessions. An agreement that only focuses on the needs or protection of one spouse may seem unconscionable to a judge reviewing the agreement in the future. Contracts generally need to offer something valuable to each party signing the document.
3. Focusing on enforceable terms
Another common pitfall among those drafting marital agreements is a focus on personal matters. People want to include terms about weight gain during marriage, household chores or even marital intimacy. They fail to understand that those terms are not enforceable in family court.
There are other terms that can also raise questions about the overall validity of the document. For example, if one spouse preemptively gives up the right to child support in the event of a divorce, that inappropriate contract inclusion could raise questions about the agreement later.
Spouses who want to ensure that their prenuptial or postnuptial agreements protect them in the event of a divorce need to follow best practices and avoid common mistakes. Getting appropriate support when drafting marital agreements can help ensure that the documents achieve their intended purpose.