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Are All Prenups Ironclad?


Marriage can be beautiful but when things go awry, the relationship can get ugly. If marriage becomes messy, divorce can certainly be messier.

So now you ask: will my prenup hold up in court when it counts the most?

It's best to draft one right or don't draft it at all. If your prenup isn't drafted correctly, you could end up wasting money on the front-end and on the back-end, through the costs of creating it and the costs of fighting it when your spouse challenges it in court.

Indeed, there are plenty of examples of celebrities and socialites where the courts ruled in favor of the lower-earning spouse despite the couple's prenuptial agreement.

Steven Spielberg's first wife, actress Amy Irving contested the validity of her prenup during her 1989 divorce and she won. She ended up walking away with roughly $100 million according to reports.

Donald Trump's first wife, Ivana Trump, successfully challenged the validity of their prenup in 1991 after his highly publicized affair with Marla Maples. Ivana landed $20 million on top of their $14 million family estate, and a healthy $350,000 a year in alimony.

What are the potential holes in a prenup?

There are numerous reasons why a prenup would be vulnerable to a legal challenge, and why it wouldn't end up serving its purpose – to specify the terms of a couple's property division and spousal support if the marriage should terminate by a divorce, instead of the case being settled in court.

The laws that govern prenuptial agreements vary by state, but it's safe to say that most judges out there will not uphold a prenup if both parties were not represented by legal counsel.

All 50 states will not honor an agreement that limits child custody or visitation or future child support, as this would be against public policy.

Generally, judges disregard prenups when:

  • A spouse fails to disclose all of their financial assets and liabilities.
  • A spouse lies about their identity or property (fraud).
  • Either spouse "lacked capacity," or was otherwise under the influence of alcohol or drugs, or mentally incompetent when they entered the contract.

We do not recommend asking your fiancé to sign a prenup on the day of the wedding. In that case, the courts could consider that he or she only signed the agreement out of fear of embarrassment, or coercion.

It's best to start negotiations six months before the wedding date, and to have the documents signed before the invitations are dropped in the mail. That will go a long way towards avoiding a legal challenge down the road.

To learn more about drafting an ironclad prenuptial agreement, contact a Columbia family law attorney at Masella Law Firm, P.A. today.

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