Based on our understanding of the statutory laws of the United States, the prenuptial agreement must be in writing and signed by both parties voluntarily, whether they wrote it by themselves or with the help of an attorney. In addition, as in any contract the parties must have the capacity to contract in order to enter into a bonding agreement.
Provision of acknowledgement by a notary public is desirable but not necessary in many states. Some states require formalities, like notarization or an acknowledgement (Arizona, Arkansas, California, Idaho, Montana, New Mexico and New York ).
We always say that we believe it's better to have the prenuptial agreement notarized and our forms provide a section for that purpose.
An agreement may not be valid if one of the spouses was pressured by the other or (by his or her lawyer or family) to sign the agreement. There are several other situations that make a prenuptial agreement invalid:
- Agreement not in Writing. Prenuptial Agreements must be in writing to be enforceable.
- Not Properly Signed. Both parties must sign Prenuptial Agreements before the wedding.
- You Didn't Read It. If your spouse-to-be shoves a bunch of papers, including a Prenuptial Agreement, in front of you and asks you to sign them, explaining them away with such excuses as "it's all just a bunch of legal mumbo jumbo," and you take him or her at face value and sign without reading, the agreement should not be enforceable.
- Provisions are not legal. Although a Prenuptial Agreement can cover just about any financial aspect of the parties' relationship, it cannot in any way modify the child support obligations that either spouse would have if the marriage should end in divorce. Any other provisions of the agreement that violate the law would also be invalid. It is possible, however, that the court would enforce the remainder of the agreement, rejecting only the illegal clauses.
- False or incomplete Information. A Prenuptial Agreement is valid only if signed after both parties have honestly and completely disclosed their income, assets, and liabilities. If someone was lying, the agreement is invalid.
- Unconscionability. It's true that you can agree to give up your right to inherit from your spouse, which you would otherwise be entitled to do upon your spouse's death, even if he or she left you out of a will. You can sign away your right to spousal support if you should end up in divorce court, even if your spouse makes ten times as much money as you do. However, if the agreement is so grossly unfair that one party gets everything and the other gets nothing, the court probably will not enforce it. "Unconscionable" contracts that only a fool would sign are generally found invalid, and Prenuptial Agreements are no exception.
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LEGAL DISCLAIMER: Legal Helpmate is not a law firm and does not give legal advice. If difficult legal issues are involved, you should consult an attorney.