The odds are increasing that either you or someone you know will eventually be heading to a divorce with a signed prenuptial agreement in hand. According to a recent survey of the American Academy of Matrimonial Lawyers, 63 percent of the respondents have seen an increase in prenups during the past three years.
Of course, there many reasons for the increase in prenuptial agreements, a primary one is an improving financial and real estate market. People are finding that as their investments and assets begin increasing in value in the aftermath of the Great Recession, they are becoming more adverse to sharing these gains in a potential divorce.
In addition, there is an overall greater public awareness of prenuptial agreements and the positive ways in which they can protect finances and remove any confusion from a possible division of assets. We are living in a society where people are remarrying or even marrying for the first time at more advanced stages of life. These individuals are usually coming into a marriage with a greater amount to lose than prospective spouses at any other time in the past.
If you or someone close to you had a prenuptial agreement drawn up and are moving forward in the divorce process, there are a number of things that should be kept in mind and resolved. The worst thing to do would be to assume that having your soon to be ex-spouse's signature on a prenup removes any responsibilities from you during the proceedings.
For starters, you will need to work with your attorney to properly document that adequate disclosure of your financial information had taken place during the initial prenuptial agreement negotiations. This would include a complete accounting of your assets, liabilities, and overall income. It is also essential to confirm that the agreement was properly signed and acknowledged within the jurisdiction of where you reside, or the jurisdiction where the prenuptial agreement was actually signed.
You should examine whether you abided by all of the obligations that were spelled out in the prenuptial agreement. If the other party had accepted any benefits from you after those obligations were met, then that can be considered a ratification of the agreement and it becomes much more difficult to fight the document in a court of law.
Another key recommendation is to make sure that your attorney has kept all the correspondence that had been exchanged during the prenup negotiation process. This includes documenting any discussions that you might have had prior to the prenuptial agreement being drawn or even subsequent conversations between you and your fiancé during the process. This information can all be considered evidence during the court proceedings and can often be extremely valuable to supporting your agreement.
Don't skip any of these steps when making your preparations because one of the most common arguments employed against a prenuptial agreement is whether or not the agreement could be found reasonable at the time that the other party signed it. From there, your estranged spouse and the opposing attorney will try to prove either that there wasn't proper financial disclosure or that you had engaged in some kind of fraud during the signing process. They could even make a claim that some kind of coercion or overreaching had taken place to secure the needed signature.
This is precisely why if you were diligent enough to have your attorney draw up a prenuptial agreement before the marriage, you must avoid the temptation to think that just having the signed contract will solve everything during the divorce. At a minimum, take all these steps with your lawyer in order to prevent your careful financial planning from being wasted and to ultimately ensure that your prenuptial agreement is upheld.