A prenuptial agreement can be a great tool for couple to establish the financial rights of each spouse in the unfortunate event of a divorce, including protecting a family business, securing personal assets, and taking care of children.
In some states each party is required to have an attorney, however in other states states you don’t need a lawyer to create a prenuptial agreement. A prenup must be in writing to be legally valid in every state. It is in your best interest to use an attorney drafted Prenuptial Agreement.
Both parties must voluntarily execute the agreement, engage in full disclosure of their assets and liabilities, and must sign the document in the presence of a notary public. Rules for prenups vary from state to state, and each contract will be evaluated on its individual merits. Some states require legal representation for both parties.
There are several conditions that can make a prenuptial agreement unenforceable:
1) The agreement is fraudulent because one party undervalued assets or failed to disclose them at all.
2) The agreement was coerced, signed under duress or signed without mental capacity.
3) One party didn’t read the document before signing
4) One spouse was given no time for consideration
5) The paperwork wasn’t properly signed and executed
6) One party signed without proper legal representation (some states require it).
7) The agreement is egregiously lopsided or contains invalid provisions such as no child support, frequency of sexual relations, visits by in-laws, etc.
The first step in the process is for the couple to agree on the essential terms of the prenup. Even in draft format, these terms should be in writing so there is no miscommunication or misunderstanding. If a prenup is drafted by a lawyer who is working for one party, it may be one-sided and adversarial, and may hurt the process of getting to an agreement.
While prenups are often used to protect the assets of a wealthy fiancée, a couple with children from prior marriages may use a prenup to spell out what will happen to their property when they die, so that they can pass on separate property to their children. Without a prenup, a surviving spouse might have the right to claim a large portion of the other spouse’s property, leaving much less for the kids.
Couples with or without children, wealthy or not, may simply want to clarify their financial rights and responsibilities during marriage. They could also want to specify in advance how their property will be divided, and whether or not either spouse will receive alimony (some states won’t allow a spouse to give up the right to alimony). Prenups can also be used to protect spouses from each other’s debts.
If you don’t make a prenuptial agreement, your state’s laws determine who owns the property that you acquire during your marriage, as well as what happens to that property at divorce or death. Property acquired during the marriage is known as either marital or community property. State law may even have a say in what happens to some of the property you owned before you were married.
In summary, for a prenup to be effective, the prenup must be:
1) Written (oral prenups are not valid).
2) Executed voluntarily and without coercion.
3) Executed only after full disclosure of assets and/or liabilities.
5) Executed by both parties, preferably in front of witnesses (or a notary).
6) Written in a recordable format.
Source: 1-2-Law: https://www.12law.com