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Prenuptial agreement pitfalls · Family Law Talk

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Speaker 1: Welcome to Family Law Talk. Family Law Talk presented by
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Kirk Stangy of Stangy Law Firm PC. Stangy Law Firm
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is a multi state family law firm. Now here's your host,
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Kirk Stangy.
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Speaker 2: Welcome to Family Law Talk. We have an interesting topic today.
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The topic is prenuptial agreement pitfalls and this episode today
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is based on an article on our blog, Tulsa Divorce
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lawyersblog dot com dated July three, twenty twenty four, and
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the title of that article is red Flags and a
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prenuptial Agreement. So, as a follow up to the episode today,
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going over to that blog and read this article for
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more information on this topic. Obviously, more and more individuals
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are interested in prenuptial agreements in this day and age.
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Some folks even come in and they are already married
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and they want a post optial agreement. And the idea
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behind these agreements is that in the instance of a divorce,
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they'll be protection, the divorce will be easier, it'll be simplified, hopefully,
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it'll take less time, cost less money and attorney fees.
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And individuals coming in to let's say a second marriage
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or a third marriage, something like this a prenuptial agreement
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can be a great thing because it can protect the
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assets that they brought into the marriage itself and then
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maybe deal prospectively with some of the issues that might
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be out there if a divorce were to occur, you know.
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The flip end. There are obviously lots of individuals who
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are still not, you know, really excited about the idea
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of a prenuptial agreement. That can seem a little bit
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unromantic to some. Some might feel like this is a
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forecast that the marriage isn't going to work, and if
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we're going to be in this and being it together,
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why do we need a prenuptial agreement. But that said,
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lots of individuals want these. They're becoming more and more popular.
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But there are some pitfall. There are some red flags
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that people have to know if they're interested in getting
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a prenuptial agreement. And this is what we want to
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talk about today in this episode. So the listeners can
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hopefully get legal counsel who's competent and to practice law
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in their jurisdiction, experienced in drafting prenupsial agreements, and then
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the hope is that these kinds of issues can be avoided. Okay,
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problem number one one of the most biggest, one of
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the most common problems with prenuptial agreements or the rush
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or the last man in agreements. So individuals decide to
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get married and then maybe they come to lawyers to
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get a print up, but it's a short time before
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the marriage itself. That's troublesome sometimes individuals. Again, it could
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be a deal where the engagement isn't very long, so
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they don't have a lot of time out of the gates.
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But in some instances, individuals might have been engaged a
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long time and they just kind of sat on this.
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They didn't understand the urgency to get this done and
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make it happen. So listeners need to understand that there
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can be reasons prenuptial agreements can be set aside or
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not enforced by a court. And some of these reasons
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are duress, which is one party is under a tremendous
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amount of pressure to sign this coercion which kind of
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goes with duress, but it's one party is putting a
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whole lot of pressure on the other person, and so
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duress and coercion can be proven at times through a
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rushed process where a party says to the other, look,
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I know we're not to get married, and you'd say two, three,
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four weeks, but you got to sign this print up
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and we're not getting married. This kind of thing. And
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of course coercion of duress could take place in other ways.
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But the closer you get to a wedding date where
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parties begin the process of trying to get a prenuptial
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agreement put together, the worse this is. And you know,
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lots of prent optial agreements will be set aside for
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the coersion in the duress principles, but the timing can
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be a big key in a judge determining whether either
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of those two things have taken place, all right, So
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better to do a prenuptial agreement as far away from
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the wedding date as possible, So you can't you know,
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nobody can give you any definitive time frames like X
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number of days is okay, but is a general rule
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further away from the wedding date the better. Obviously, individuals
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might hear this and they're like, wow, well I don't
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have a whole lot of time. Now, we can't push
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back the wedding, So they still do the prent up
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and go forward with the wedding. But they just have
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to understand the legal risks that are there. If it's
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you know, that print up assigned very close to the
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wedding date, all right, issue too is no legal representation.
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In order for prenuptial agreement to be enforced, both parties
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should really have independent legal counsel, right, so they each
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need their own lawyer. The lawyers cannot work in the
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same firm and be independent. And both parties need to
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be advised thoroughly about the provisions and the print up,
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the clauses, the pros, the cons these kinds of things.
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And if both parties have a lawyer, that makes these
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agreements a heck of a lot more enforceable. But if
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both parties don't have a lawyer, that's not good. If
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one party doesn't have a lawyer, that's not good either.
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Both parties really need to get legal counsel and a lawyer.
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And even if it's a situation where somebody hires a
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lawyer and that lawyer takes you know, a short period
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of time to read it and go through the pros
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and the cons with the individual, that can suffice. But
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either party not having a lawyer is not good, all right.
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Vague provisions can be a problem. There's lots of forms
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out there, form prenupsal agreements, these kinds of things. People
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want to pull them and use them, and there could
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be some geneer clauses in there. Individuals just need to
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be careful. The provisions in a print up need to
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be clear on its face. They need to be carefully drafted.
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There shouldn't be ambiguities in there. There shouldn't be stuff
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that's up to a lot of judicial interpretation. And so
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having a lawyer draft a prent up in a way
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that's specific, that's clear, that's detailed, is a good thing.
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In Vague provisions, on the other hand, are definitely red
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flags or pitfalls and things obviously to avoid, all right.
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Problem for is impossible or immoral provisions. So sometimes in
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prenuptial agreements, you know, unusual clauses might be put in there,
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clauses that try to dictate too much day to day life.
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There could be provisions in there that are deemed to
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be unconscionable or may be illegal. These kinds of things
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can all be problematic. So you know, in short, you know,
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sometimes individuals can overreach, and these prenuptial agreements put clauses
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in that are moral that really try to govern day
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to day life in a marriage, which isn't a good thing.
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And maybe some of the clauses might even be impossible.
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And you know, the more stuff that's like this at
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a prenuptial agreement, the greater the chance that can be
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set aside. So this is something to be very careful
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with and make sure lawyers aren't overreaching in terms of
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the clauses in a prenuptial agreement. All right, Problem five
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is more protection for one spouse, So prenuptial agreements really
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need to be balanced. In other words, both parties need
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to gain something from the prenuptial agreement in some way.
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So if the prenuptial agreements written in a way, well,
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once one spouse would be walking away with you know,
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a great deal, maybe almost all the assets, and the
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other spouse isn't getting much. Anything that can be that
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could be really problematic and could result in a prenuptial
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agreement to be found to be unconscionable. And if it's unconscionable,
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then a court might not enforce it. So it's important
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that there'll be a give and take, that the prenuptial
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agreement result in some way of both individuals benefiting through
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the agreement itself, and that it not be too one
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sided where a judge thinks, wow, one person really really
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came away great and the other party to this marriage
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is coming away with nothing significant, nothing tangible. That's a problem, okay,
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And so these prenuptial agreements need to be balanced and
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people need to be a little bit more generous than
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maybe they were thinking out of the gates to make
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sure that when a judges reviewing the prenuptial agreement, they
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see that both parties are gaining in some way. All right,
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So other questions out there. What is considered unconscionable in
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a prenuptial agreement. This is tough because this is really
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in the eyes of a judge, and a judge would
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have to make this determination. So if there's a prenup
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and the divorce is filed, that prent up has got
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to be filed with the court and then the judge
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is going to review it. And again, if there's outrageous
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clauses in terms of morality, or there's clauses that have
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impossible clauses for people to meet, or more protections are
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there for one spouse and the other. In other words,
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one spouse again is walking away with a great deal
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and the other spouse has a terrible deal. I mean,
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the more that's out there, the more likely it could
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be deemed unconscionable. So it's not a deal where anybody
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can give you cut and dry rules. It's kind of
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a judge saying I know it when I see it,
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and this prene up doesn't look fair. Okay, so unconsionable fair,
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you know. I mean all these terms can make lawyers
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a little bit uncomfortable because it's you know, it's a
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balancing test, if you will. But it's important that these
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prenups be written in a way that's two sided, that
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both parties gain in some way. All right, what constitutes
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duress in a prenupsial agreement? Well I covered this a
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little bit a little bit more before, but again, closer
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to the wedding date, the more likely a court could
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think that there's duress. I mean if one party saying
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things like, well you need to sign this or we're
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not going to get married, and this is kind of
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throwing on another person at the last second. That kind
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of thing, I mean that could definitely be definitely be
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a bad, bad thing that could result in duress. I
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mean duress. You're thinking pressure, You're thinking one person's really
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leaning on the other person, and that the one party
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doesn't even really want to sign this, doesn't want to
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do this, but they're getting pressured. Right, there's duress, There's threats,
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these kinds of things. I mean, the more facts out
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there like that, the more likely a prenup could be
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set aside for duress. All right. In terms of what
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cannot be in looted in a prenuptial agreement, this is
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question lots of individuals have. The big one is you
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can't have any clauses in a prenuptial agreement that deal
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with child custody, child support, or any of these kinds
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of issues. I mean, when you think about it, I mean,
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you can't deal with custy of kids that haven't been
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born yet, child support for kids that aren't born yet.
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Parties financial states could be very different the years, you know,
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many years down the road after marriage, So you can't
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put anything in about child custy or child support. That's
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stuff that cannot be put in a prenuptial agreement, the
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alimony or spousal maintenance issues and other big issue. Look
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in some circumstances, and I'd say a lot of circumstances,
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parties can put clauses in that where both parties are
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waiving maintenance or one party's waving maintenance or something like that.
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But look, in some states it could be problematic, and
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it could be problematic theoretically based on other provisions of
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the prenupsial agreement itself. So look, these clauses can be
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common in prenupsial agreements, and oftentimes they are enforceable, and
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in some jurisdictions they're enforceable way more often, but there
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are some jurisdictions where it's just not one hundred percent
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a right. So individuals need to know that that, you know,
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there's some ambiguity there in some states in terms of
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the enforceability of these kinds of clauses. All right, other
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things that would be you know, problematic at a prenuptial agreement,
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and let me give you a few more, would be
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non financial personal preferences that a spouse must adhere to. Right,
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So these kind of morality clauses. Again, the clauses that
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govern the day to day living of a married couple,
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like these kinds of clauses. You know, you hear some
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weird stories about celebrities putting these clauses and prenupsial agreements
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in these kinds of things. And again, some states or
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judges might have more willingness tend force these clauses, but
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as a whole, these are pitfalls or red flags, and
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in most instances the kind of stuff to avoid, all right,
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any kind of clause that requires a spouse to agree
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to or allow a legal behavior that shouldn't be in
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a prenuptial agreement, and any kind of clause that encourages divorce.
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So if there's clauses in there that really encourage divorce
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that shouldn't be in there, and that you know would
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be would be troublesome if it was all right, all right.
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You know, Typically, again what you're trying to deal with
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in a prenuptial agreement is the financial matters and the
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financial disposition in terms of the marital property and debt,
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and that kind of stuff is okay, but when you
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start delving too far out of that, it can be problematic,
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all right. So the final question is our prent ups enforceable. Again,
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prent ups are generally enforceable if they follow contract and
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marital agreement guidelines, and so it's important that it abides
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by case law and in your jurisdiction and do some
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uniform premertal agreement acts. And I mean they generally need
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to be drafted in conformity with those acts. And again,
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farther away from the wedding date, both parties have a lawyer,
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no duress, no cores. And another big key is parties
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have to fully disclose their financial affairs, so full disclosure
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of finances and debts. You know, if all this stuff
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is taking place in the prentup doesn't overreach or a
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post up doesn't overreach, I mean, it's generally going to
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be enforceable. But it's these pitfalls, these red flags, they
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create problems, and these are the kinds of things it's
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important to know about if you're going to be seeing
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a lawyer to have a prenuptial agreement or post optial
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agreement drafted. Avoiding these pitfalls or red flags are going
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to increase the chances of enforceability. All right, Well, definitely
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an interesting topic. Again is a follow up to the
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episode today, going over to Tulsa Divorced Layers dot com
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and read the article titled red Flags and a Prenuptial Agreement.
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It'll give you more information on this topic. But thanks
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for tuning in today. Stay tuned our next episode of
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Family Law Talk coming up. Thank you very much.
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