Prenup Attorney in Jackson MS

Prenuptial AgreementsPrenuptial Agreements, also known as ‘antenuptial agreements,” are contracts entered into before marriage between a man and a woman setting forth what will happen to assets in divorce or death. Prenuptial agreements were recognized in Mississippi as early as 1859 and are enforceable like any other contract. They must be in writing.

Before anyone signs a prenuptial agreement, they should consult with counsel. This is true even if the agreement is presented in the days or hours before the marriage. Persons asked to sign a prenuptial agreement in the waning moments before the marriage should see that as a red flag that they are being asked to sign something that may be quite detrimental to them. A strong case in point is the recent case of Ware v. Ware, 7 So. 3d 271 (Ct App. 2008). In that case, Ms. Ware contended she was presented with the agreement two days prior to the wedding. She did not have an opportunity to read the agreement or to have an attorney to review it. She felt “somewhat pressured” to sign the agreement. The Court held that the agreement was valid, finding that there was nothing in the record showing she was “forced” to sign the agreement. The Court also did not accept Patti’s argument that she had not read the agreement, stating, “a person is under and obligation to read a contract before signing it, and will not, as a rule be heard to complain….” More importantly, the Court held that it was not necessary that a person have independent counsel for the agreement to be valid. This case makes it clear that prenuptial agreements are serious documents which should not be signed under any circumstances on the hope that they will not be enforced.

On the other hand, a person who desires to protect assets should take precautions to make sure the agreement is above challenge. Not all cases turn out like the Ware case where an agreement was held to be valid even though the timing was close to the marriage and the woman had no counsel. To protect the validity of the agreement, we recommend following the following steps:

  1. Time the drafting of the agreement so it can be signed at least 60 days before the marriage.
  2. Provide a financial statement for both parties and attach it to the agreement to ensure full financial disclosure.
  3. Obtain counsel for the other party.
  4. Guard against an agreement which is so one sided it may be viewed as fundamentally unfair.
  5. Film the signing and have the person state on camera that they do not feel under any pressure to sign, have received full disclosure, have had the opportunity to consult counsel and view the agreement as fair.
  6. Have the parties sign “ratifications” of the Agreement after the marriage to ensure that pension waivers are valid under Federal Law.

For more info, read Mark’s article “Prenuptial Requisites” from Family Advocate Magazine, American Bar Association Family Law Section, Vol. 24, No. 3 (Winter 2002)