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Attacking a prenuptial agreement

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When high-profile Illinoisans divorce a common topic is the strength of the couple's prenuptial agreement. When done properly, these agreements, along with postnuptial agreements, can be essential for almost everyone, from business owners to stay-at-home moms to those who want to make sure they get the pet in case of a divorce.

But doing a pre- or post-nuptial agreement right can be tricky -- hence the speculation every time a high-profile couple calls it quits.

Prenups can be invalidated in five ways. The first is fraud. This would be the case if one of the spouses did not disclose all of their assets and debts. The second is coercion which occurs if one spouse signed the agreement under duress or while lacking mental capacity. An example of lacking mental capacity would be signing an agreement while intoxicated. The third is improperly filed paperwork. The "T's" must be crossed and the "I's" dotted. The fourth is execution of the agreement without being represented by an attorney. And the fifth is unconscionability. In other words, the agreement is simply too unfair to enforce, even if everything was done properly.

The meaning of provisions within prenups can also be contested. Take a case where the prenup said that if a spouse spent $1 million or more of their separate funds to buy marital property, the other spouse would credit that amount before dividing the marital assets. One spouse argued this meant that a spouse had to spend at least $1 million on a specific piece of property to qualify. The other spouse countered that the provision covered a spouse that spent at least $1 million on marital property generally, not just a single piece of marital property. The court sided with the first spouse, which altered the final asset division by millions of dollars.

Source: Forbes, "How Key Portions Of Prenups And Postnups Can Be Invalidated," Jeff Landers, Oct. 16, 2014

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