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Prenuptial agreements carry such power to gravely wrong a weaker party to a marriage, that most courts in most jurisdictions will go out of their way to void the agreement.

This tendency to become void creates unique problems for prenuptial agreements. First, attorneys with any functional neurons are loath to draft one since the affect on their malpractice insurance is second only to writing wills. To make it crystal clear, attorneys regularly get sued for malpractice over both prenuptials and wills. The reasons for this are obvious. Both marriage/divorce and death are emotionally charged events. People who are disappointed during these life-changing events tend to be very, very disappointed. In fact, they tend to be so disappointed that they are willing to take out a big chunk of change to pay another attorney to "get even."

So, you might inquire, why not just skip the attorney and draft it ourselves? Well, here we come to the favorite reason judges void prenuptial agreements. It is common in many states that a prenuptial agreement will not be enforced if the weaker party to agreement has not been expressly given the opportunity to have a lawyer review the agreement. In fact, just recommending "go see a lawyer" isn't good enough for most judges. The courts expect that an appointment with an impartial attorney be made at a time convenient to the weaker party. If he/she blows off the appointment, shame on them. But if the stronger party doesn't set him/her up with appropriate counsel, the prenuptial will hit the trash can "void."

Secondly, the weaker party has enforceable rights by statute and/or by common law in most jurisdictions, and most courts are going to treat any agreement as "illegal" or "pseudo-illegal" since it is an attempt to deprive the weaker party of his/her guaranteed share. For example, in all community property states, the weaker party's share defaults to 50%. Even in separate property jurisdictions, most of them have adopted some form of the model divorce code that provides for "quasi-community" property that effectively creates nearly a 50% share in most cases. Any prenuptial agreement that strays far from these legal guarantees is going to be voided.

Third, the courts will work hard to find a lack of consideration being exchanged by the parties for the prenuptial agreement. To put it another way, generally the stronger party gets all the benefit, and the weaker party carries all the risk. Since such agreements tend to be strong armed and not negotiated at "arms length," the courts are again loath to enforce them. Moreover, because of the emotional state of one or both parties at a marriage (somebody is usually very, very happy), the courts will sometimes say that no "meeting of the minds" on the agreement was possible.

So what about all those prenuptials you hear about? Well, the rich and the famous really do live in a different world when it comes to dissolution law. Generally, the courts rationalize by saying that both parties were knowledgeable enough and had enough of their own resources to make such an agreement fair. But even then, a prenuptial agreement is a risky document barely worth the paper it is written on.

In the real world of ordinary people, prenuptial agreements are worthless. Requiring them in all marriages will have the opposite effect intended. Instead of streamlining divorce, it will create one more matter for both parties to throw huge sums of money at to vent their rage at the other party. It will also create guaranteed income for any attorney with no malpractice insurance and only half a brain.

Learn more about this author, John Cooper.
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