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Why might a prenup be challenged in a divorce?

When a couple in Colorado chooses to execute a prenuptial agreement, after hammering out their financial issues, they often can come to an agreement that initially they are both satisfied with. However, things do not always stay so rosy. Sometimes a couple's marriage hits the rocks, and when divorce is on the horizon due to animosity or other issues, one spouse will challenge the prenup saying it should not be enforced.

First, a spouse might try to argue that they were not represented by an attorney when the agreement was signed. Each spouse needs to have his or her own attorney when creating a prenup so that each spouse's individual interests can be represented, and so that each spouse understands the legal consequences of signing the prenup.

A spouse might also try to argue that they only signed the prenup under duress. A spouse cannot be forced to sign a prenup. In addition, a spouse must have the requisite mental capacity to enter into a prenup. For example, if one party was drunk, they may not have the capacity to understand what they are signing.

Also, couples should not wait until the last minute to sign the prenup. It may be possible for a spouse to argue that they were coerced into signing the prenup and was not given enough of a chance prior to walking down the aisle to examine the prenup and make a decision as to whether to sign it.

In addition, when executing a prenup, each spouse is required to make a complete and accurate disclosure of all of his or her assets and debts. If a spouse had hidden assets, the prenup could be void. In addition, a prenup cannot contain any clauses regarding child support, as these go against public policy and will not be enforced.

Finally, while sometimes one spouse comes out ahead in the prenup, the prenup cannot be so in favor of one party that it becomes unconscionable. An unconscionable prenup is one that "Shocks the conscience," and will not be enforced.

These are only some ways a prenup can be challenged in court. Of course, the best thing to do is to make sure not to make any of these mistakes when drafting the prenup in the first place. Therefore, spouses should do what they feel is necessary to execute a prenup that falls within the confines of the law.

Source: The Huffington Post, "10 Common Prenup Pitfalls," David Centeno, Jan. 23, 2014

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