A prenuptial agreement, called an "antenuptial agreement" by some in Oklahoma, is a powerful tool for any couple who is about to be married, even if neither is a millionaire. Once signed, prenuptial agreements set the terms for support and property division in the event of death or divorce. As prenuptial agreements are almost impossible to set aside, it is important for each side to have skilled, independent legal advice and representation during the negotiation and drafting process.
Prenuptial agreements have been around for thousands of years. A prenuptial agreement enables a couple contemplating marriage to define their expectations for the division of property and payment of support in the event of divorce. Prenuptial agreements also affect disposition of property in the event of death of one of the spouses, making the prenuptial agreement an estate-planning document. Once signed, a valid prenuptial agreement deviates from defaults set by law and alters the rights of the spouses. For example, a prenuptial agreement could say that, no matter what happens in the marriage, neither side will have a claim to support alimony. Prenuptial agreements have special favor in the eyes of the law and the courts, so, if prepared properly, a prenuptial agreement may be impossible to set aside. Prenuptial agreements are serious decisions and should not be entered into without much planning and thought and the advice of an experienced, specially-trained family law attorney.
Requirements and Process
Prenuptial agreements are enforceable so long as they are “fair, just, and reasonable.” The attitude of Oklahoma courts toward prenuptial agreements is favorable, as such agreements are said to foster marriage between a couple who might otherwise not marry and give both partners up front information about how the other’s property may be disposed of and thus eliminate unnecessary disputes and conflicts.
If you wish to have a prenuptial agreement prior to marriage, then both of you will be best served if you are reach represented by your own attorney. This has at least two benefits: 1. Each of you will have independent legal advice and the ability to ask questions and obtain information privately, and 2. Later, it will eliminate the ability of one side to claim, “I didn’t have counsel — I didn’t know what I was doing.” Each side will be best served by keeping a copy of all correspondence between the lawyers through the drafting and negotiating process, as the communication may be useful later in demonstrating that each side was being served by their attorney.
Each side should make full disclosure of his and her worth. This is often accomplished by a list of assets with values. The list should be a part of a conversation between the couple as the wedding and the prenuptial agreement is discussed, as it is important that in addition to the list each side have generally accurate knowledge of the other’s worth. It helps if the correspondence between the attorneys reflects transmittal of this information during the drafting and negotiation process, so neither side can later claim that they never actually saw or had access to the information.
Prenuptial agreements take time to negotiate, prepare, and sign. Springing the idea of a prenuptial agreement just before exchanging vows raises many questions. Most attorneys will be uncomfortable with a prenuptial agreement proposal mere days before a wedding. If you desire a prenuptial agreement, you should discuss it with your partner months before your wedding takes place.
Challenging a Prenuptial Agreement
Prenuptial agreements are very difficult to challenge. As Oklahoma law has developed over time, our appellate courts have addressed a variety of situations. Prenuptial agreements may be set aside based on fraud or duress, both of which are extremely difficult claims to prove. However, if you are going through a divorce and your prenuptial agreement has potential weakness, you may be able to negotiate more favorable terms if your spouse is not willing to take on the expense and risk of a hearing to challenge the prenuptial agreement.