A prenuptial agreement can make property division much easier when it comes time to divorce. However, certain factors can lead a court to render your prenuptial agreement invalid, which may result in you losing more assets to your ex-spouse than you want. Here are two things that can cause a prenup to be invalidated and what you can do to prevent it.
Failed to Disclose Assets
Divorce isn't the only time when a spouse may try to hide assets from their soon-to-be ex. A person may misreport his or her assets when drawing up the prenuptial agreement in an attempt to avoid having to produce them during a divorce or to keep the prenuptial agreement from looking unfair. However, failing to disclose your assets constitutes fraud, and the court will throw out your prenuptial agreement based on this.
There are many other ways you can protect your assets without trying to hide them. For instance, putting your assets in a trust before you get married can prevent them from being touched in a divorce since it would typically be considered separate, rather than marital, property. It's best to discuss the issue with a financial planner or attorney for all the options available to you to protect your property and money.
The Agreement Is Lopsided
Another reason why a court may throw out your prenuptial agreement is because it's unfair to your spouse in some way. If you included a clause in the contract that you get any real estate purchased during the marriage when you divorce, for instance, the court may feel the agreement is lopsided if there is not provision for you to pay your spouse a fair sum for his or her interest in the property.
Along these same lines, the court may find the prenup is unconscionable if upholding it harms your spouse or takes advantage of him or her in some way. For example, the marital home was customized to accommodate your spouse's disability. If you have the previously discussed clause in your contract, the court may think putting your spouse out of the home to be unconscionable and void the contract (or at least that part).
You must aim to craft the prenuptial agreement so that it's fair to both of you. This is where having the advice of a family law attorney can be helpful. The lawyer can advise you which parts of the prenup are likely to get you in trouble and help you create a contract that will withstand any legal challenge.
For more information about prenuptial agreements or help defending one, contact a local lawyer from a firm such as Nichols, Speidel, & Nichols.