How to Make Sure Your Prenup Is Valid

• The agreement must be signed and in writing: The agreement must be in writing and signed by both spouses. Some states require that it be signed before a notary and/or one or more witnesses. For your own protection and record-keeping, it’s also advisable to videotape both parties signing and store the tape in a safe place.
• The agreement must be entered into voluntarily: Both parties must understand fully the meaning, operation, and implications of the prenuptial agreement. Without this understanding, they cannot be said to have entered into the agreement voluntarily.
• There must be full disclosure: Each party must disclose fully to the other all assets, income, debt, credit history, criminal record, and any other information that could conceivably influence the other’s decision to marry and/or sign the agreement. The required disclosure must be completely thorough and impeccably honest. It should be written in a clear way and be as detailed and specific as possible. If there are difficulties in determining the value of certain assets, or in calculating a party’s net worth, the disclosure should acknowledge the difficulty, set forth any and all relevant facts, and provide the best possible estimate or range of estimates as to value. Significant assets should be described as precisely as possible, including account numbers of bank and investment accounts, legal descriptions of real estate, and so on. After such measures, there should be no surprises or illusions regarding either party’s financial status.
• The agreement must be fair: Each party must have enough time to consider, understand, and evaluate the terms of the agreement, and obtain independent legal advice, before signing. There is no specific rule stating how much time is enough, as it depends on the particular circumstances in each case. Ideally, you should negotiate and sign the agreement before setting the wedding date, then set the wedding date for at least a month after signing. Courts tend to be very skeptical of agreements signed on the eve of a wedding, because in such cases it’s more likely that one party will have signed involuntarily, under pressure or duress, or without fully understanding what he or she is signing. The more time there is between the signing and the wedding day, the more likely it is that a court will honor and enforce the agreement.
• The agreement must be conscionable: The agreement must not be uncon­scionable when drafted (and in some states, also when enforcement is sought). Unconscionability is a legal standard used widely in contract law to invalidate or set aside contract provisions that are so unreasonable under the circumstances that no reasonable person would willingly agree to them. In the context of premarital agree­ments, courts consider all relevant circumstances, including the relative knowledge and sophistication of the parties, the conditions under which the agreement was made, and the economic circumstances of the parties resulting from the agreement. Courts weigh these circumstances and decide whether the agreement is unreasonably one-sided, oppressive, or unfairly surprising to one party. Where there is unfairness, overreaching, or—especially—concealment in the dealings between the parties leading to the agreement, the court may refuse to enforce certain provisions or may even set aside the entire agreement.
• There must be no fraud or duress: In the context of a prenup, fraud means withholding or misrepresenting any fact that may be relevant to the agreement— in short, there can be no secrets and no lies. Duress means an unlawful threat or coercion used to make someone do something they otherwise wouldn’t. Neither fraud nor duress can occur during the negotiation, drafting, or execution of the prenup.
• The parties must get married: Finally, the parties must in fact get married in a manner recognized by state law.