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How important is attorney representation in a prenup?

There is nothing that says that a couple planning a prenuptial agreement must do it with the help of an attorney. But there is an old adage that goes something like, "A man who is his own lawyer, has a fool for a client."

Not only is it widely considered a good idea to have an experienced family law attorney's help in drafting such a document, it's considered wise to have both parties to the prenuptial agreement represented by separate attorneys. By following that practice, you can be more confident that the final product will stand up to possible challenges that might come.

It's important to keep in mind that when two people get married under Texas law they are entering into a contract and certain property rights are automatically granted. Typically, both parties equally own property acquired during the marriage and both have the authority to exercise control over the shared assets.

Any agreement that alters that arrangement, whether it is drafted and signed before or after the marriage occurs, needs to be enforceable. If a court thinks any part of the agreement is unfair, it could be deemed invalid.

Skilled lawyers know that certain terms have a way of scuttling an agreement. Which ones might be factors depends on the state, but generally speaking these are terms that prenuptial agreements cannot contain:

  • Terms violating existing legal codes. Attempts to alter how future child support is determined or that create specific future visitation rights will be rejected. Courts also will not accept language that offers financial incentives that promote divorce.

  • Provisions framing nonmonetary issues. Conditions that specify which spouse will do what around the house and how often, or establish the size of the family, could lead a court to set the whole agreement aside.

It makes little sense to create an agreement that could wind up being unenforceable, so it makes a lot of sense for anyone considering such agreements to work with qualified legal counsel.

Source: FindLaw, "Hiring a Prenup Lawyer," accessed Jan. 28, 2016

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