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Protect yourself from being taken advantage of with prenuptial agreement, P.1

We’ve been looking at the topic of prenuptial agreements in recent posts, particularly their usefulness for addressing a wide variety of matters a couple might want to address in their marriage and in the event of divorce. As we noted, the flexibility of prenuptial agreements is a positive thing, but it makes legal advocacy that much more important.

Because parties are free to use a prenuptial agreement to establish a variety of terms, opportunities may arise to take advantage of a less sophisticated party. As we pointed out last time, parties may agree to modify or eliminate spousal support, which can be a potentially poor decision unless the financially weaker party secures some other avenue for compensation. 

Opportunity for taking advantage also lies in the fact that parties may establish terms related to the personal rights and obligations of each party. The wide variety of issues an agreement might address leaves open the possibility of taking advantage, even if the terms may not violated public policy or criminal law. Most importantly, though, working with an experienced advocate is important to ensure that any agreement reached is voluntary and that both parties are open and honest with one another regarding their financial situation.

Under state law, lack of voluntariness and unconscionability are grounds on which a court may choose to set aside a prenuptial agreement. Lack of voluntariness is fairly self explanatory, while unconscionability relates to the fairness of the agreement. In our next post, we’ll look at this issue and how an experienced attorney can help in regard to unconscionability. 

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