Unfair Prenuptial Agreements
According to Mona R. Raskin, a divorce attorney in Linwood, New Jersey, prenuptial agreements can cover the disposition of assets not only in the event of divorce, but in the event of death if you leave your spouse less than the elective share under your state's statutes in favor of your children from a previous marriage. These agreements are defined by the desires of the parties entering into them. They can be honorable and realistic, but they can just as easily be self-serving.
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Considerations
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A reasonable prenup will always mirror existing divorce case law, making one almost redundant except in the instance of death and potential probate issues. All states provide that assets brought into a marriage are exempt from distribution to the other party in the event of divorce if they were never commingled during the marriage. Inheritances are exempt from equitable distribution, as are personal injury settlements unless your spouse is co-named as plaintiff. If you are being asked to sign anything that does not resemble existing case law, then this would be unfair.
Validity
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As of 2010, prenuptial agreements are valid throughout the United States. A court will invalidate an agreement, however, under certain circumstances. In the case of a long-term marriage where circumstances have changed radically since the signing of the agreement (such as the disability of one partner), most courts will back off from enforcement especially with regard to spousal support. The biggest detriment to validity is when one of the partners did not have legal representation during the process of signing it. In the case of Marriage of Foran, 67 Win. App. 242 (1992), an appellate court set a precedent that a prenuptial agreement can be considered unfair and invalid if both parties did not have their own attorneys review the agreement prior to signing.
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Inclusions
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By law, any prenuptial agreement entered into must contain certain information. If yours does not, it is unfair. Both you and your potential spouse must divulge your entire financial picture. If you suspect that anything is being withheld, this is a warning sign.
Features
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You can protect yourself against liability for any premarital debt incurred by your future partner. If the agreement tries to assign any to you, this is unfair.
Misconceptions
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If you are being asked to waive potential child support for any children you might conceive together, this is unfair and will not be upheld in court. All state statutes will defer to the best interest of the child in this instance because a child has the right to subsistence from both parents. Furthermore, a prenuptial agreement is not inviolate once signed. If one or both parties bypass some of the terms of the agreement, it does not remain valid. For instance, if one party invests in property owned and exempted by the other, and both are aware of and willing to engage in the transaction, then that aspect of the agreement will no longer hold unless provisions are set forth to compensate the contributing party.
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