Recent court decisions around the nation suggest that a properly drafted prenuptial agreement will likely be enforced. Although no prenuptial agreement can possibly address every possible issue, nor can an attorney insure its enforceability, Nevada cases as well as those around the country suggested if the prenuptial agreement is properly drafted and the proper safeguards utilized, it will be enforced. The basics of a properly enforceable prenuptial agreement include full disclosure, independent counsel and voluntary. Although not necessarily required, basic fairness should also be part of the agreement.
The party attempting to avoid enforcement of the agreement has the burden to show: 1) the agreement was reached involuntarily; 2) the agreement was unconscionable when executed; or 3) the party was not provided fair and reasonable disclosure of the other party’s property, the party did not voluntarily and expressly waive in writing any right to disclosure and the party did not have or could not have had adequate knowledge of the property or financial obligations of the other party.
A recent opinion from a Maryland court found that even though the husband failed to disclose an asset and presented the agreement only days before the marriage, she understood the substance of the agreement and testified that she loved him and was going to marry him regardless.
Again, no agreement can provide “iron-clad” protection, but with the proper planning, properly drafted agreement and post-marital conduct that is consistent with the agreement, one may significantly enhance his or her chances of having an enforceable agreement.
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