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Key issue with marital contracts: enforceability

Many people across the country have changed their minds about so-called marital contracts in recent years, now fully appreciating their strong utility as planning devices for both soon-to-be and already married partners.

Increasingly more fiancés and spouses are seeking the legal acumen of proven family law attorneys in fully explaining the parameters of prenuptial agreements and postnuptial contracts. An experienced attorney can also draft such agreements to ensure their lawfulness and enforceability in the event of a future challenge.

That latter potential certainly can arise with certain marital agreements and, indeed, such contracts are sometimes contested in court during a divorce proceeding.

That is not surprising, given that the provisions of a marital contract often favor one party over the other in certain areas.

It is important to note that such agreements are not voidable simply because their terms might seem a little one-sided. There is a stark difference between a contract pursuant to which one party simply bargained badly and an agreement that truly is legally questionable and might qualify to be set aside.

Thus, it is imperative that a prenuptial or postnuptial agreement be well considered and thoughtfully executed in the first instance.

At a minimum, that means that such a contract does not contain one-sided provisions that are sufficiently egregious to induce a court to throw it out for circumventing public policy. An “I promise never to work” provision might do that, as will a clause mandating that one partner forever relinquish custody rights in a child-related dispute. If a judge finds that one co-signer coerced the other to sign or engaged in fraud by concealing information on assets, an agreement will likely be set aside with dispatch and great judicial ire.

To be effective, a marital contract needs to be well drafted, mindful of all legalities and enforceable when challenged. An experienced family law attorney who routinely works with such agreements can help ensure that all those key objectives are met.

Source: Huffington Post, "When a prenup gets thrown out," Stann Givens, July 1, 2014

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