The word “prenup” is a common term that most people have heard at some point in their lives. Whether considered as a safety blanket for those reluctant to truly commit or as a smart way of recognizing the inherent risks in modern-day marriages, prenuptial agreements are still favored by Tennessee law.

A prenuptial agreement is highly favored by people with considerable wealth or those who own a business. Spouses entering a second marriage also use this opportunity to protect their children’s inheritance or themselves from the other spouse’s debts.

While it’s imperative to know the importance of a prenup agreement, it is equally important to understand how it can be enforced to stand up if tested in a Tennessee Court. The courts in Tennessee will only uphold properly drafted prenups. Therefore, this means an improperly or poorly drafted prenup may face difficulties when you attempt to have its terms enforced.

What Are the Requirements of a Prenuptial Agreement?

Certain elements must exist in a prenuptial agreement to make it lawful. Each of the terms in the agreement must be fact-based and shouldn’t omit or misrepresent information. That’s why you need an experienced Tennessee family law attorney to help you draft an agreeable prenuptial agreement.

Here are the most common elements included in a prenuptial agreement:

  • A clear delineation of each spouse’s property and what community property should look like
  • Protection for children from previous marriages
  • Estate planning for you and children from previous marriages
  • Protection of a spouse from the other’s debts
  • A proper arrangement of property rights upon divorce

What Shouldn’t Be Included in a Prenup?

Other than what should be in a prenuptial agreement, there are things, if found in the agreement, will automatically invalidate the agreement. A valid prenup agreement shouldn’t have these aspects:

  • Frivolous agreements such as how to behave or what to wear on social circles
  • A statement detailing child custodyor visitation rights of future children
  • A statement that stipulates forfeiture of all your money following divorce
  • Anything that seems to encourage divorce, i.e., anything that seems to favor one spouse in case of divorce
  • Any other personal rules rather than financial

What Signs Show That a Prenuptial Agreement Isn’t Enforceable?

Like many states, Tennessee uses the Uniform Prenuptial Agreement Act (UPAA) to determine the enforceability of prenup agreements. Tennessee courts routinely enforce prenup agreements that are entered voluntarily and freely.

If there is a sign of undue influence or unfair terms, the enforcement of the agreement would be disfavored. Some of these signs include:

  • Scanty provisions for a spouse in the agreement which would seem like the spouse isn’t disclosing all essential elements
  • If the agreement creates friction between the two of you, you should avoid it altogether
  • An agreement with not too many terms for the other spouse shows a lack of consideration
  • A party’s parent trying to influence the terms in the agreement

Are There Situations When a Prenuptial Agreement Is Not Enforceable?

An enforceable Tennessee prenuptial agreement needs thorough and meticulous legal work. The goal here is for this agreement to survive an attack when challenged. Legal attacks on such an agreement often arise when marital problems are on the surface.

You must realize that there are always valid reasons for an attack on your prenup agreement. Often, it is the spouse who’s most negatively affected by the terms who mounts the attack. Most successful attacks on prenups will question the negotiation process. Tennessee courts will not accept remorse or regret as a reason to invalidate a prenuptial agreement but will accept the following reasons:

  • Evidence of coercion to get someone to sign the contract
  • Evidence of false declaration of assets and liabilities by one party (illegally unfair). This includes attempts to conceal earnings or statements that misled the true status of assets.
  • If the agreement was signed under duress, fraud or any other unconscionable act

Remember that Tennessee courts reserve the right to use their own discretion when children are involved. Even when a parent makes provision regarding his or her children, it’s highly unlikely such a clause will be enforced.

Factors Used to Challenge the Validity of a Prenup in TN

Other than the UPAA rules, several factors can challenge the validity of your prenuptial agreement. Your Tennessee family law lawyer should walk with you to ensure that due process is followed and these steps are taken:

  • Each party must be allowed to seek help from an independent legal counsel
  • The terms of the agreement must be conscionable. “Unconscionable” means that the terms are overwhelmingly unfair to invalidate a contract.
  • Any issues with financial disclosure before or during the signing of the agreement will be used. Questions of who valued the property, when it was done, and the quality of valuation will arise.
  • Conditions in which the agreement was signed will be considered. Questions like when was it signed might be asked here.

Can My Prenup Agreement Be Enforced in Multiple States?

Since divorce law is determined on a state by state basis, it could be impossible to know the enforceability of a prenuptial agreement in different states (this is also true for couples who never leave the original state but have stayed in for decades).

Even with this uncertainty, you can still follow general rules to help your prenup enforceability across multiple states.

Best Practices for Creating an Enforceable Prenup Across Multiple States

  • Maximize financial disclosure at the time of drafting the agreement– most Tennessee agreements are invalidated due to incomplete financial disclosures. While states like New York and Illinois don’t generally require an agreement to be “conscionable,” Tennessee is keen on this.
  • Note assets acquired in the marriage– most states will protect spouses that seek to protect their premarital assets. But there are variations of how marital assets are divided. To be safe, consider having some assets acquired during the marriage divisible following divorce.
  • Avoid extreme outcomes– you should avoid decisions that will create unequal outcomes, e.g., leaving you wealthy and the other spouse, on welfare. While some states are strict and don’t typically care about unequal outcomes, you will maximize enforcement across states if your prenuptial agreement doesn’t lead to extreme asset/income disparities.

Walk With a Professional Legal Representative

As you can tell from above, prenuptial agreements in Tennessee are complicated. An agreement that is not well prepared will not be enforced in a Tennessee court, and some of the terms may be dismissed.

A marriage shouldn’t take away what is yours. You should protect your assets, and both your present and future rights. A properly drafted prenup will be infallible in court – with the help of a knowledgeable divorce lawyer in Tennessee.

At Davis Law, our family lawyers will help you draft and litigate the validity of your prenuptial agreement. Come let  one of our family law attorneys help you.