Entering into a Pre-Nuptial Agreement “PNA” for couples contemplating marriage at an advanced age is a way for each to feel secure that what they have accumulated in the years prior to the marriage will be preserved. Later life couples who marry often want their individual estates to be handed down to their children after death, of, if the marriage does not work out, preserved for their retirement years. They often see that just because they marry does not mean the perspective spouse ought to have the right to part of their accumulated wealth. Entering into a PNA at an advanced age is also a way for the parties to focus on the relationship itself without being concerned about marital or sole and separate property issues.
There are certain basics that need to be part of a PNA which, if adhered, to will provide the solid building blocks for a viable agreement not subject to a successful challenge in the event of a later divorce. First among these is that each party is represented by an attorney who has fully reviewed the Agreement with each party prior to signature.
As important as legal representation is clear and unequivocal evidence that the perspective spouses entering into the PNA fully understand the Agreement by dint of their sound mental capacity. If there is any question about such capacity of a perspective spouse to fully understand the Agreement, a prior interview with that spouse by a psychiatrist or psychologist and a letter attesting to the spouse’s competency is advisable. In some cases, a video recording of the spouse, or of both spouses, in which they are questioned about the specifics of the Agreement and their full understanding of the terms is deemed advisable. This can put to rest any future claims that the Agreement was not fully understood for whatever reason.
Also important is that there be clear evidence that no coercion or duress exerted on either spouse pressuring them to sign the Agreement. A typical example is a PNA being presented to a spouse, sometimes for the first time, on the eve of the contemplated marriage ceremony, along with a threat that the marriage cannot (shortly) take place without the document being signed. Such occurrences will often nullify the Agreement.
As to waiver of payment of spousal maintenance, such waiver is a valid term in a PNA. However, if the waiver results in destitution after divorce for a party who would normally receive such support without a PNA, such a waiver may well be nullified.
If a PNA is being considered by parties contemplating a marriage, being represented by counsel is the way to best assure that such an Agreement will hold fast in the face of a later challenge.