When done fairly, and I’m going to go as far as to say when done the “right” way, a pre-nuptial agreement is a great idea. It can help a couple getting married to understand their finances. For a couple that includes children from a previous marriage, it can help that couple have a realistic conversation about wills and trusts. And, should a marriage end in divorce, it can take care of issues that could cause big fights in a divorce before they have a chance to start.
Not everyone goes into the pre-nup process the “right” way, though. Some people don’t know any better. Some people might think they’re getting away with something. But those missteps can actually make a pre-nup invalid if they’re successfully challenged. It doesn’t matter if both parties’ signatures are on the pre-nup if it shouldn’t have been drafted in the first place.
One question that lawyers will likely ask as they review a pre-nuptial agreement prior to divorce has to do with what’s called the “benefit of the bargain.” If a person is giving up what would be his or her fair share to assets in a pre-nup, my first question would be, “Why is this person giving this up?” Then I’d wonder what the person is getting in exchange.
If it’s not a case where a celebrity marries a non-celebrity, it might not be obvious to a judge why someone would agree to this kind of tradeoff. And, even if someone agreed to these terms because he or she was deeply in love, it might not meet the scrutiny that comes when a couple divorces and they’re no longer in love.
The time that each party had with the agreement will also come into play. If there was no opportunity for the couple to negotiate the terms of the agreement, it will look bad. If a man presents his fiancée with a pre-nup to sign on Thursday and the wedding is that Saturday, that may not be enough time!
Some might think that the last-minute pressure of an impending wedding, and the embarrassment of not going through with the wedding, will cause someone who otherwise wouldn’t agree to a pre-nup to sign one. Those people might get the pre-nup signed at the time, but a signature gained under duress isn’t the same as a signature properly arrived at through negotiation. It’s not just me who feels that way–a lot of judges feel that way too!
If there aren’t proper disclosures of information at the time the pre-nup is signed, that can also affect the validity of the pre-nup. If, for example, you have millions of dollars in assets, this will affect what your future spouse will agree to, and if you’re wanted by Interpol, this will affect whether you even would be able to go through with the marriage.