If you and your partner come to a mutual decision to obtain a prenuptial agreement, you should arrange to sit down with qualified family lawyers. Yes, each of you should get their own separate counsel to avoid conflict of interest and ensure that the lawyer is looking out for your best interest.
Professional family lawyers focus on creating an agreement that is legally sound and enforceable. If it doesn't meet these criteria, then the courts may not uphold it when you do separate. To ensure that it's enforceable, here are a few things to keep in mind.
Including or Excluding Anything Potentially Illegal
There are terms you may want to include in your prenuptial agreement that are in outright contravention to the provisions of family law and the law in its entirety. The inclusion of such terms will inform the court's decision not to enforce or uphold the agreement.
Waiving payment of child support is one such example. Child support is within the purview of family law, and the court may choose to invalidate such a clause or the entire document.
What is a prenuptial without the required signatures? Such a seemingly small exclusion can invalidate your agreement document, which is why family lawyers take the time to review the agreement carefully.
Neglecting Full Disclosure
Hiding part of your assets when drawing up your prenuptial agreement may seem like such a clever idea to protect said assets against claims by the other party. Try and be sneaky in this way, and you risk having the agreement invalidated.
Family lawyers can never emphasise enough the importance of being transparent and providing full disclosure when drawing the agreement. The implication of not providing disclosure is that the other party did not have full knowledge of the agreement's implications when signing.
Making an Agreement That Favours One Party
A prenuptial agreement should protect both of the involved parties. If the terms of the agreement are such as unfairly favouring one party, then the court may not uphold it on the grounds of it being unconscionable.
As already pointed out, this is the reason why it is best not to have the same family lawyers representing both parties. This, however, is not something required by the law, but looking at the benefits, it is best to each get your own lawyer.
On account of any of the reasons highlighted, a family law court may be less than inclined to uphold your prenuptial agreement. Family law consultants can help you avoid these pitfalls when drawing up the agreement.