The Guide to a Prenupital Agreement – “Holler we want prenup!” – Kanye West
This is a guide to what I believe would be an effective prenuptial agreement also called premarital agreement.
Usually, contract law governs prenuptial or premarital agreements. This is usually done by the same elements as a contract, which is offer, acceptance, and consideration. Usually, the first two elements, offer and acceptance, are met when the document is drafted and the charged party signed the agreement. Most of the time, the prenuptial agreements must be in writing. As for consideration, which is the bargain for exchange, many courts rule that this element is met because the parties are exchanging promises to marry. Other states do not require consideration for prenuptial agreements.
All defenses that apply to contracts applies to a prenuptial agreement. Thus, duress, fraud, or misrepresentation may vitiate enforceability. Voluntariness is the most relevant defense. Note for advisement, please do not present a prenuptial agreement to your spouse the day of the wedding. You will have a voluntariness issue and prior cases do not help you.
Independent counsel is not determinative in most states. However, recommending the other spouse receive independent counsel only strengthens your prenuptial agreement. If a person doesn’t get an independent counsel, I recommend that they should sign a waiver. This could be done by an independent document or a waiver clause.
Most importantly there must be a full and fair disclosure. In fact, Mississippi Supreme Court has stated that a full and fair disclosure “is of paramount importance” to the premarital agreement. Hensley v. Hensley, 524 So. 2d 330, 334-335 (Fla. 1987). You should disclose all financial information. Not only should you disclose the past and current information, but you should disclose future financial plans and business deals.
I hope this helps out, but the best way to avoid prenuptial problems is avoiding divorced. Please be cautious before getting married and “make it last forever.” -Keith Sweat.