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Negotiating an enforceable prenup

In our last post we looked at possible uses for a prenuptial agreement. As we noted, every couple has their own circumstances to consider. Aside from certain limitations, prenups are quite versatile and can be used for a variety of purposes.

No matter which concerns are being addressed, it is critical that both parties work with an experienced attorney to effectively negotiate and properly execute their prenup. Individuals should secure separate representation to best protect their interests and ensure the validity of the agreement should it later be challenged in court.

One of the primary concerns an attorney has in negotiating a prenup is ensuring its validity. To be valid a prenup must not involve any misrepresentation, or fraud. If either party fails to fully disclose assets or liabilities, a court may decide that the agreement should be set aside.

Coercion or duress is another concern. Both parties should freely enter into the agreement; neither should feel pressured by the other party or by the attorney representing him or her. The couple should show respect for one another during the negotiation process; each should have sufficient time to contemplate the terms of the agreement. A prenup may be declared invalid if the agreement favors one party at the expense of the other.

One purpose of a prenup is to avoid dispute. Effective representation of both parties will contribute to an enforceable prenup in the event of a divorce.

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