How important is negotiation when it comes to a prenup?

If you and your soon-to-be spouse have decided to sign a prenuptial agreement, you likely already appreciate how important and helpful this document can be. A prenup can protect individual assets, set expectations for spousal support and establish guidelines for a settlement in the event of a divorce.

By addressing these financial matters before getting married, people typically find that it makes the very difficult process of dividing assets in a divorce a little easier. However, challenges can and do arise when it comes time to enforce the document. For example, Florida courts may invalidate a prenup or certain clauses if there is reason to believe one party was at a significant disadvantage when signing the document.

In order for prenup to be valid, there must be an indication that both parties understood what they were signing and had the opportunity to change certain aspects. If a person did not have an attorney review the prenup or if he or she felt compelled to sign the document without making changes, a challenge could be successful.

For example, one person could argue that the prenup was an adhesion contract. This means that it was a standard document that did not allow the disadvantaged party to make any changes or negotiate any of the terms. This could be interpreted as a failure to understand the contract or an indication that the disadvantaged party had no power to negotiate.

Evidence of negotiation, therefore, will be crucial. It can be an indication that both parties were active in the drafting of a prenup and that there were conscious efforts made to understand and make changes to the document.

Enforcing prenuptial agreements can be far more complicated than people realize. Because of this, it can be crucial that each party has an attorney by their side when they sign a prenup and in the event that it comes under scrutiny. 

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