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Pre-Nuptial Agreements

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Pre-nuptial agreements


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Can a Pre-Nuptial Agreement be Contested?

Pre-nuptial agreements can be contested. In some cases one of the parties will contest the pre-nup while the divorce is taking place while in other cases the parents or the children can contest it after the death of a spouse. Regardless of who contests the agreement, the party is most often looking to have it declared void so that the present laws that apply to probate or divorce laws can be upheld. A claim can be put before the court that one spouse did not completely comprehend the pre-nuptial agreement at the time it was signed and put into effect or that one spouse physically or mentally coerced the other to sign the pre-nuptial agreement without the person wanting to do so. This is known as duress and it can nullify the agreement.

In order to prevent duress from ever entering into the picture, it is best to have the pre-nuptial agreement signed well in advance of the wedding. While there is no specific maximum or minimum time frame for reviewing and discussing all provisions included in a pre-nuptial agreement, it is generally recognized that the more time each person has to look it over together and separately the better it is for everyone involved. If both future spouses take as much time as they need to review the agreement then it is more likely to be considered voluntary under the law, which would make contesting it more difficult down the line.

Be aware that if a pre-nuptial agreement is signed a day or two prior to the wedding ceremony it is valid however this could be a factor that could play a role in the future if the pre-nuptial agreement is ever contested. This is something to give thought to when you are contemplating a pre-nuptial agreement.

If it is determined that either party was misrepresented at the time the agreement was drawn up then this gives weight to the contesting of it. For example one spouse could have been misrepresented because it was nonbinding due to tax reasons or it could have been temporary. If one party did not disclose all of their assets at the time that the pre-nuptial agreement was drawn up, then this can work in the favor of the person who is contesting the pre-nup. This is a type of fraud. If assets or income are not fully disclosed then this can cause problems to arise in the future and can leave one spouse liable and the other in the lurch.

There is another condition under which a pre-nuptial agreement can be contested and this is if one of the people lacked the proper capacity to sign the agreement, such as if one party was sick at the time and/or taking any type of medication that impaired their judgment or if one person was inebriated at the time or under the influence of any other kind of drug.

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