Are prenups Iron Clad protection? How can women get around them?

Answer 1

Although NO contract is iron-clad -- between business, consumer, and prenuptual contracts, prenups are the LEAST iron-clad.

Because a prenup is a contract between fiances, courts generally believe that there is a much greater risk for deception and overreaching than is the case with ordinary commercial contracts. Quite simply, it is not an arm's-length transaction, and thus various presumptions regarding its validity are much weaker. As a result, whenever a prenup is challenged in a divorce proceeding (whether by the husband or by the wife), the court will scrutinize it much more closely than it would a business or a consumer contract.

Some things will invalidate a prenup automatically:

1. Lack of FULL financial disclosure prior to executing the prenup. Both spouses must inform each other of the nature, value, and location of ALL their assets. It doesn't matter whether you think a particular asset should or should not go to your spouse in the event of a divorce -- even if it's an heirloom -- whatever -- you MUST disclose it. If one of the parties hides (or forgets to reveal) something, it will justify invalidating the prenup by the wronged party.

2. Inadequate legal representation. The spouses must either both not have attorneys, or both have separate, independent attorneys. Naturally, if one of them IS an attorney, the other one must get his/her own legal representation. A spouse's attorney may not be paid by the other spouse. (And, as with all contracts generally -- all ambiguities will be construed against the party whose attorney drafted the document.)

3. Conflict of interest. An attorney, no matter how distinguished or well-meaning, cannot -- CANNOT -- represent both parties in a prenup. The parties' interests here are adverse; and to attempt to "reconcile" them is a conflict of interest that will automatically kill the prenup.

4. Violating statutory provisions. Contrary to popular belief, there are some things that even sober consenting adults may not agree to. In most, if not all, US jurisdictions, a husband and wife cannot agree not to support each other. Not even if they are self-supporting. Not even if they are independently wealthy. Cannot do it -- it's barred by statute as being against public policy. So no, you cannot have a prenup that will give the wife a toothbrush and local cab fare in the event of a divorce.

5. Depriving children of financial support. You cannot agree not to support your children -- it's as simple as that.

6. Depriving a spouse of access to the legal system. This, really, is the rub -- no matter how good a prenup is, nothing will stop a determined spouse from trying to have it invalidated. You cannot agree not to challenge a contract. You, furthermore, cannot agree not to divorce (though you may agree not to use a certain ground). These things, too, are against public policy.

Apart from these, there are other considerations that a court may take into account. A great disparity in bargaining power is one. Overreaching is another. A few years ago, a New York court threw out a prenup because it was sprung up on the wife with no warning 3 hours before the wedding -- in Paris, no less. The wife was quickly given "an attorney" -- a first-year associate in the firm of the husband's lawyer who took "leave of absence" for a few days so that he could, supposedly, represent the wife. Because the couple was in Paris, and this was done 3 hours before the wedding, the wife had no opportunity to hire her own, independent, counsel, or at least review the document without being rushed -- and her "representation" by the husband's attorney's employee was, of course, totally sham. Needless to say, the prenup was extremely disadvantageous to her.

Last, but not least, not only women can get around prenups -- men can, too. The best, sanest, and most clearly enforceable prenups are either between people who are both independently wealthy, or which provide the poorer spouse with some compensation for waiving her legal rights, and do not seek to punish. If you don't fit into either of those categories, a prenup probably isn't the way to go; a better thing to do would be to marry a woman of comparable financial means and social status. But take a trophy wife -- and you are asking for trouble, prenup or not.

Answer 2

Don't sign it. If you really want to marry, and a prenup is the only way "he" will do it, have your own personal attorney look at it. Prenups are all different. For instance, does he own part of a business with other partners and that is what is in the prenup, that you are not entitled to any part of it? If so, that may be a requirement of the company. If instead it is "I have money and you don't" then an attorney just craft it so that you are entitled to a portion after x years then more and more as time goes by. Is it divorce or death. Sorry, to big of a q for this type of forum.

Best of luck

Answer 3

It depends on the circumstances. There must be full and complete financial disclosure. Both parties should be represented by separate legal counsel who are not members of the same law firm. If the woman does not understand accounting and finances, it is recommended that she secure a person trained in financial matters to explain it to her.

So many times a poor woman has signed prenuptial agreements because she did not understand the nature of what she was signing. That is why she should have her own counsel. NEVER rely solely on the advice of the husband's attorney. He has a conflict of interest because he is representing the husband's interests.

Often women are unsophisticated in financial matters. They let the husband do all the banking, pay the bills, and make the investments. In that instance, the wife should have a professional to represent her interests explain to her the nature of the husband's assets and liabilities, as well as his income. He will be able to intelligently tell her the economic impact of what she is asked to sign.

In a marriage, so much is left to trust. However, we must remember that Ronald Reagan said we should "trust but verify" as from the Russian Доверяй, но проверяй.

It is up to you to look out for your own best interests. Make sure you understand everything before the prenup is signed.

Answer 4

There is no such thing as iron clad protection in the field of family law.

Answer 5

Worked for Britney Spears. Kevin gets what the prenup gives him ... unless he can get custody of the children, 'eh?

A contract is as good as the attorney that writes it.

Answer 6

There isn't any iron-clad protection, and they are fought the same way other contracts are fought. It's not easy, but it works sometimes.

Answer 7

A prenuptial agreement is a signed and legal contract. Do not sign a contract you may not want to honor later.