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How to avoid having a prenuptial agreement thrown out in court

A prenuptial agreement can be worthwhile for just about any couple who is tying the knot. However, if you are bringing considerable assets (or debt) into the marriage, have children from a previous marriage or relationship or own a business, a prenup can be particularly valuable should the marriage end.

Arizona is a community property state. Therefore, a carefully-crafted prenup can save you the loss of considerable assets as well as a lot of money in legal fees.

However, there are instances in which a prenup can be thrown out in court if challenged by a spouse during a divorce. Judges can determine that either certain provisions in the document are unfair to one of the parties or that the circumstances surrounding the signing of the document weren't fair.

For example, if one person was coerced into signing the agreement by his or her partner or someone else, it may be unenforceable. The same is true if one partner claims that he or she didn't have a chance to read the document or seek independent legal counsel before signing it.

In some of these cases where one person felt pressured to sign a prenup or didn't understand precisely what he or she was agreeing to, that prenup has terms that drastically favor one party over the other in a divorce. These agreements are considered by many judges to be unconscionable and likely won't hold up in court.

If it turns out that one of the parties wasn't honest about his or her financial situation (or if neither of them was), the prenup is likely to be thrown out. It's essential that both parties fully and honestly disclose all of their assets, debts and other relevant information when drafting a prenup.

There are certain things that prenups can't legally address -- such as child custody. Any provision that doesn't belong in a prenup is unenforceable.

An experienced Arizona family law attorney can draft a prenup that doesn't have any of these problems and should hold up in court. Both soon-to-be spouses should have their own attorneys involved in the process. This can help ensure that it's written to protect both people should they not live happily ever after.

Source: Forbes, "How To 'Bust' Prenuptial Agreements," Russ Alan Prince, April 04, 2018

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