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If you aren't careful, your prenup could fail you in a divorce

Perhaps you had to work up the courage to ask your future spouse to sign a prenuptial agreement. Now that you have, the two of you may be engaged in negotiations. You fully disclosed your financial affairs, identified separate property and made agreements regarding how you would divide marital property in a divorce.

You may be satisfied with the agreement the two of you reached and feel ready to move forward. But first, you may want to make sure nothing about your prenup could end up in a Texas court declaring it invalid if you end up needing it.

A validity checklist

In order to make sure that your prenuptial agreement remains valid, watch out for the following potential pitfalls:

  • You and your intended spouse failed to sign prior to your wedding date.
  • Your future spouse feels pressured in some way to sign the agreement.
  • You neglected to put your agreement in writing.
  • You failed to make sure that each of you has adequate time to review the agreement and consult with an attorney prior to signing it. Signing the week before, the day before or the day of your wedding may cause a court to question whether you met this requirement.
  • You or your future spouse failed to completely read the agreement before signing it.
  • One of you did not provide full disclosure to the other party or provided false or incomplete information.
  • The two of you used the same legal counsel.
  • Your agreement leaves one of you at a serious financial disadvantage. If this happens, the court may rule it invalid because of its unconscionability.

What could go wrong?

Since prenups are essentially agreements to give up certain rights, the court wants to know that you entered into it voluntarily and that you understand what it means. If you do end up in a divorce, you will need to present your agreement to the court. The judge will review your agreement and the circumstances under which it was executed. If it doesn't meet with the above criteria, some or all of the agreement may be invalidated.

If that happens, all the work you did to come to an amicable agreement may disappear. You and your spouse will have to start from scratch, which could pose a problem if your separation was contentious. It's better to be safe rather than sorry, which is more than likely why you wanted the agreement in the first place.

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