5 Mistakes to Avoid When Drafting Your Prenup

Prenups are viewed negatively, and for some couples, it can completely derail their engagements and put their forthcoming wedding day in jeopardy. With couples waiting longer to get married, parties are coming into their marriages with more financial interests than previous generations. Many people refrain from topics of money because they bring up feelings of nervousness and awkwardness. Money is an uncomfortable topic. So, it’s not surprising if you’ve been avoiding a candid financial discussion with your future spouse.

You can only avoid these uncomfortable topics for so long. You can’t rush your prenup, and if it doesn’t adhere to the rules, your prenup could be invalidated. We’ve compiled a list of the most common mistakes couples make when crafting their prenuptial agreements.

• One Party Felt Pressured to Sign: Both parties need to be willing and of sound mind during the creation and signing of the prenup. You should never strong-arm or coerce your fiancé to sign the prenup. This means that neither of you can be on drugs, drunk, or in any way impaired when the prenup is executed. It’s also not wise to wait until the final moment before the wedding to finalize the prenup. It can be argued that being rushed is a form of coercion. Give your fiancé at least 3 to 4 weeks before the wedding to review the document with their lawyer. It can be difficult to prove someone was coerced, but you don’t want to try it.

• Inclusion of Off Limit Provisions: There are items that cannot be included in the prenup, so it can render the document void if you include them. A primary issue that couples try to put into their prenups that are not allowed is child support issues. If you’re unsure about where to begin, start early with your attorney to craft the document and follow all directions, so enforceability of your prenup is not in question.

• Legal Representation: Prenups are legal documents, so you should hire a lawyer to help draft yours. It’s just that plain and simple. You shouldn’t execute a contract without legal counsel if you are worried about the enforceability of your document. If you still choose to forego legal representation, you may be disappointed should you divorce. When you choose a lawyer, make sure you both are covered. It’s better if both parties have their own legal representation.

• Fraudulent Agreement: Your prenup can be deemed fraudulent if you are not honest in your disclosure of assets. If you or your fiancé fail to disclose your full income and assets, either of you may have ground to contest the prenup and have it thrown out. If you are trying to have your prenup invalidated because you have evidence assets were purposefully hidden at the time you signed, then call your attorney for any next steps you should take to prove fraud.

• The Prenup is Lopsided: The prenup cannot favor one party over the other or make undue requirements on a single party. If the prenup makes provisions about the weight gain limitations, sexual requirements, or appearance standards of one party, it’s considered lopsided. These types of unacceptable additions can get a prenup thrown out in court.

In California, if you want to make sure you’re avoiding the most common pitfalls that land prenups in the trash heap, you need to ensure it’s:

• Written Prenups Only, No Oral Prenups Allowed
• Not Coerced; Willfully Executed By Both Parties
• Signed Within a Manageable Time Frame
• Full Disclosure Only, Hidden Assets Will Open You to Invalidation
• No Lopsided Prenups

No matter how uncomfortable the topic may be, you and your fiancé will benefit from an open discussion about your finances, future goals, and estate planning. There are rules that govern prenuptial agreements are in place to ensure that both sides are treated fairly.

Call us at (916) 797-1575 for more information on these and other estate planning documents to match your situation.