Avoid Challenges To Premarital Agreements

Challenges to premarital agreements rarely succeed. Even if a proponent of a marital agreement wins a challenge, he/she is still left with legal fees and the risk of an appeal by the losing party. When drafting a premarital agreement, it is best to go beyond making it a valid agreement. You should aim to discourage an attack.

In many states, all that is required to make an agreement valid is that both parties entered into it voluntarily. Most states do not even require that the terms be fair. Since the requirements for validity are not strict, very rarely will a challenge to validity succeed. In the rare case that an agreement is deemed invalid, it is because there was not adequate financial disclosure or there was an egregious case of duress combined with extremely unfair terms.

There are several ways that a lawyer can protect an agreement from attack. The party seeking a premarital agreement can encourage the weaker party to get counsel, create an opportunity for negotiation, or get his/her client to make some provisions for the partner’s financial security. Attorneys can also put some provisions in an agreement to discourage challenges to validity. Lawyers can stipulate that a challenging party who loses has to pay the legal fees for the prevailing party or the agreement can provide that spousal support rights will be reduced or forfeited if the spouse challenges the agreement.

See Linda J. Ravdin, Premarital Agreements: Validity Is Not Enough, Wealth Strategies Journal, July 10, 2011.

Special thanks to Jim Hillhouse (Professional Legal Marketing  (PLM, Inc.)) for bringing this article to my attention.