Is A Prenup Always Followed In A Miami Divorce?

If you are getting a divorce and you have a prenuptial agreement in place

, it is a common question to wonder whether the prenup will actually be enforced. The answer is that it usually will be, unless there was something wrong when the prenuptial agreement was created or unless there are provisions within the contract that violate public policy and are thus unenforceable.

When is a Prenup Not Enforced?

A prenuptial agreement is intended to protect the assets of a person who is going into a marriage. Depending on how the agreement is drafted, it may in some cases also provide some guarantee to the other spouse that he or she will receive a certain settlement when a divorce occurs. Because a prenup is an agreement that two people make that outlines what they want to have happen in a divorce, and because it is so important to people with significant assets, courts generally will enforce the terms of a prenuptial agreement in court.

However, in order for a prenup to be enforced, it must have met certain requirements at the time when it was made. For example, the prenuptial agreement must be in writing- oral agreements will not be enforced. The prenuptial agreement must also have been voluntarily signed without undue duress or force. For example, a prenuptial agreement presented to someone on the day of the wedding with no time to review and threats that the wedding would be called off if the agreement was not signed is generally not going to be a valid prenuptial agreement because there is a solid argument to be made in this case that the prenup was signed under duress. Generally, the person who signed the agreement will have needed time to review and even the opportunity to have the agreement looked over by a lawyer in order to make sure that there is no valid claim for duress.

The prenuptial agreement also may not have been entered into under false or fraudulent pretenses. Typically, this means that both parties must have been aware of the assets of the other party before signing the agreement. If someone was lied to about the assets that his or her future spouse actually owned, it is possible that the prenuptial agreement will not be enforced.

Unenforceable Provisions

Even when a prenuptial agreement is valid and was signed by both parties, there are certain provisions that are not going to be enforced. These provisions are things that are against public policy. For example, typically a person cannot waive the right to child support in a prenuptial agreement because that right does not belong to either spouse- the right to support is a right that belongs to the child. A clause that waives child support, therefore, may not be enforced even if the rest of the prenup is otherwise valid and enforceable.

Getting Help

If you are involved in a divorce situation and there is a prenup in place, it is advisable to contact an experienced Miami divorce lawyer for help in managing your divorce proceedings and making the most informed choices.

by: Jeff Miller

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