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We have a prenup in place, but can I challenge it?

If you are getting divorced, chances are that you feel much different about your spouse today than you did on the day you were married. And you may look back at that time and the decisions you made and think, "I should have never done that!"

For instance, you may be feeling this way about your prenuptial agreement. If you signed one before you got married, you may now be wondering if you can do anything to keep it from being enforced. 

In many cases, a prenuptial agreement will be enforced and dictate how elements of your divorce will be resolved. For instance, spousal maintenance and property division could very well be done in accordance with your prenup.

However, this is not to say that simply having a prenuptial agreement is enough to bind you and your spouse to its conditions.

There are situations where a prenup -- or parts of a prenup -- are deemed unenforceable. There might be clauses that are not lawful; you might argue that the document was not properly signed; it might contain fraudulent or inaccurate information. Under these circumstances, you could have a prenup invalidated.

Before you make any decisions and concessions regarding a divorce based on a prenup, it is critical that you understand your legal option to challenge the enforceability of the agreement. With the help of your attorney, you may be able to get certain unfavorable or unfair clauses thrown out so that a more satisfactory settlement can be secured.

Keep in mind that it is preferable to make sure your prenup is fair and enforceable before you sign it, rather than relying on the option to later challenge it. Too many people make mistakes like agreeing to things they shouldn't or signing a prenup without consulting an attorney because they don't think they will ever have to worry about divorce. But while you can still challenge a prenup under these circumstances, you can ultimately save yourself a lot of time, money and energy by consulting an attorney before you agree to sign anything in the first place.

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Stanley A. Kweller, Attorney at Law
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Nashville, TN 37201

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