When some North Dakota couples decide to get married, there are concerns about personal property and finances that spark the signing of prenuptial agreements. In many instances, this is a protective device that will never be an issue because the marriage works and they remain together. For some, the end of a marriage is unavoidable and a divorce is necessary. That is when the prenuptial agreement comes into focus. Understanding when and if it will be enforced is important to both parties.
For a party who is claiming that a prenuptial agreement is unenforceable, the following must be proven: the party consented to it involuntarily or because they were under duress; he or she did not have independent legal representation; there was no legal representation and the person had no notice that there was a waiver of rights or a clear explanation regarding marital rights or obligations that would be modified or waived by signing the agreement; the party was not given sufficient financial disclosure prior to signing.
Regarding independent legal representation, that criteria is met if the person, prior to signing the agreement, was granted reasonable time to determine whether it was wise to have a lawyer to provide that independent legal representation. It is also met if the person found a lawyer to provide it, the person received advice from that lawyer, or the other party agrees to pay the costs of that independent lawyer.
With financial disclosure, the party must have gotten a description and estimate of the value of the other person's property and it was reasonably accurate; there was waiver of the right to that financial disclosure; or the person had adequate knowledge of the finances. The court can decide not to enforce prenuptial agreements if it is found to have been unfair when it was signed, or if enforcing it would lead to the person experiencing substantial hardship due to a material change in circumstances after it had been signed.
Divorce is often complex and difficult and it becomes even more so if there was a prenuptial agreement and that agreement is now in dispute. A law firm that has experience in all areas of divorce can help either party with a prenuptial agreement as a fair divorce resolution is sought. Calling for a consultation regardless of the circumstances is key.