Steps to Guarantee a Solid Prenuptial Agreement: Creating a prenuptial agreement isn’t just something advisable for the “super rich” or those with celebrity status. Prenuptial agreements are essentially a method to predetermine certain outcomes in the hypothetical possibility of divorce at some future point in time. In other words, they are a means to remove the courts from influencing certain outcomes, such as property division and alimony.
Prenuptial agreements are not actually “special” from a legal or contractual viewpoint, although many people tend to assume that this is the case. Prenuptial agreements are basically the same as other contracts, and consequently the law treats them in much the same manner as it does other contractual agreements. Of course, because these agreements have a specialized purpose, the law in Colorado does treat them differently in a few subtle ways. But, on the whole, they are not altogether dissimilar from other contracts.
With this in mind, let’s go over a few tips to help ensure your prenuptial agreement is foolproof.
Tip #1: Make Sure the Agreement is Signed by Both Parties
This tip is simple: to be considered enforceable, a prenuptial agreement must be signed by both parties. There are no exceptions to this rule. Prenuptial agreements cannot be enforceable on the basis of verbal assent alone; they are not “verbal contracts,” and parties who try to enforce an agreement on this basis will not succeed. This doesn’t mean that all verbal communication surrounding prenuptial agreements is irrelevant, as this communication may assist in the construction of certain terms within an agreement; but, an agreement isn’t “facially valid” until it is signed by both parties.
Tip #2: Avoid Any Type of Duress, Coercion or Fraud
Certain types of behavior will automatically collapse a prenuptial agreement which would have otherwise been perfectly valid and enforceable. These behaviors are duress, coercion and fraud. Duress and coercion are somewhat similar, as they both speak to improper influence exercised during the agreement formation process. If a party signs “under duress,” which basically means under the fear that an unwanted outcome will occur, then the agreement may be rendered invalid; coercion generally means that one party was improperly compelled in some way. Fraud means deception, and so if a party deceives the other party in some way, such as failing to make certain disclosures, the agreement may fail.
Tip #3: Avoid “Conflicting Behavior” During Marriage
As a general rule, parties should avoid behavior which creates a direct conflict with the terms of a prenuptial agreement. As an example, if certain property is listed specifically as separate property in the agreement, parties should avoid behavior which holds out that same property as marital property. Real property listed as separate property should not be referenced as “our house,” a vehicle listed as separate property should not be referenced as “our car,” and so forth. This is a precautionary device to avoid any potential complications.
Tip #4: Only Include Allowable Items in the Agreement
Traditional contracts may only contract for “legal” items to be valid. Prenuptial agreements have the same restriction, but they also restrict specific items. These items are not “illegal,” but the law simply states that they are ineligible for inclusion within this type of agreement. Child support is one of the things which cannot be included within a prenuptial agreement. The reason is because the law holds that child support is a natural obligation, and not something which can be bargained for in a contractual context.
Contact the Drake Law Firm for More Information
If you would like more information on making prenuptial agreements foolproof, prenuptial agreements in general, or another related topic, contact one of the family law attorneys at the Drake Law Firm today by calling 720-679-8813.