Common Prenup Mistakes That Can Invalidate Your Agreement When You Don’t Hire a Prenuptial Lawyer in Suffolk County

When a Judge reviews a prenuptial agreement to see whether or not it is valid, what are they looking for?  A prenuptial lawyer in Suffolk County will help you, but the following are some common mistakes or errors that a Judge will look for when evaluating a prenuptial agreement:

• Signed very close to the date of marriage: This is probably the first thing a Judge will look for.  Although, there is no set rule on when a prenuptial agreement should be signed prior to the wedding date, the closer it is to the wedding date, the more suspicious it looks.  When a Judge sees a prenuptial agreement signed a day before the wedding or even a week before, the Judge may believe that it is being entered into “under pressure” and therefore invalidate the prenup.  My rule of thumb is that a prenuptial agreement should be signed at least one month before the wedding date.
• One party does not have an attorney: This is probably the second biggest mistake that a Judge will evaluate.  If you signed the prenuptial without having an attorney represent you, a Judge may believe that you did not realize the consequences of what you are signing and invalidate the prenuptial agreement.  It is okay if you pay for your spouse’s attorney, as long as your spouse has full control over who he or she selects as their attorney.
• Failure to include a valid acknowledgment (notarize signature): In New York State, a prenuptial agreement must be: (i) in writing and (ii) both party’s signature must be notarized and have very specific language that is the same that is in a Deed (this is called in legal terms, the “acknowledgment”).  A famous case threw out an acknowledgment because the acknowledgment was missing the phrase: “to me known and known to me”, despite testimony that the notary knew the person signing the prenuptial agreement and other testimony that showed that it should have been valid.  You want to make sure that your attorney knows that the prenuptial agreement has to be notarized and has to have a valid acknowledgment.  If a prenuptial is not notarized or has an invalid acknowledgment then it will be an invalid prenuptial agreement.
• It is “unconscionable”: This means that the prenuptial is so one-sided or unfair that it would “shock the conscience”. This “mistake” is becoming less relied on by Judges, if you had an attorney and signed the prenup at least a month before the wedding date, a Judge may feel you made the bargain and even if it appears unfair, they may not invalidate the prenuptial agreement.  However, it is always better to be safe than sorry.  This does not mean that the prenuptial agreement has to be “fair” it just can’t be so lopsided or unfair that a person of common sense would not have signed it.
• Failing to Disclose Significant Assets: Each party should disclose what significant assets they are claiming as their separate property and protected in the prenuptial agreement.  For example, if the prenuptial agreement stated something like this: “All the real property that I owned prior to the wedding date shall be the Wife’s Separate Property.”  By itself, that language may be valid, but, only if in the prenuptial agreement it also lists exactly what real property the Wife has.  Otherwise, the other spouse doesn’t know what they are waiving and a Judge may invalidate the prenuptial agreement.

You want to make sure that your prenuptial agreement does not contain the mistakes listed above.

If you need a prenuptial agreement drafted or if you are presented with a prenuptial agreement to sign, David Badanes, Esq. and the Badanes Law Office drafted over fifty prenuptial agreements.   Contact David Badanes and the Badanes Law Office, P.C., the phone number is: 631-239-1702, email at david@dbnylaw.com or visit our web site: www.dbnylaw.com.

Please like us on Facebook to get important legal news, tips and articles: www.facebook.com/BadanesLawOffice.