The purpose of a prenuptial agreement is to have a legally binding and enforceable contract setting forth the rules to be followed in the event of death or divorce. There is no absolute guarantee that a particular prenuptial agreement will be enforced. There are various rules that courts use to determine if an agreement is valid and should be followed.

Agreements that make a fair and reasonable provision for the spouse waiving certain rights gained upon marriage are usually valid agreements. Agreements that waive certain rights after full and frank disclosure of the assets and debts of the other spouse or at least a general and approximate knowledge of the spouse's net worth prior to signing of the agreement are generally upheld.

A prenuptial agreement may be invalid if reached under circumstances of fraud, coercion or duress or for being unreasonable under the facts and circumstances. However, you are free to make a bad bargain should you choose.

A general rule to keep in mind is that if the judge feels one party took unfair advantage of another, the agreement will not be upheld and will be useless.

The best way to be sure your prenuptial agreement is valid is to:

1. Be sure there is full and complete disclosure of all assets and debts and their fair market value. Make sure you disclose all income you receive from whatever source. The agreement may not be enforced if a court later finds one of you was prejudiced by a lack of accurate and complete information.

2. Although you don't need an attorney to enter into a prenuptial agreement, it is almost always a good idea for each of you to have independent legal counsel during the drafting and signing of the prenuptial agreement. Two attorneys working independently, but in cooperation, to create a good agreement almost always do a better job than one attorney representing just one side. It is unethical in Florida to have one attorney trying to work for both sides in a prenuptial agreement. Two heads are often better than one. Actually four heads: yours, your partner's, and the two attorney's can do an even better job. Courts are often urged to invalidate prenuptial agreements where one person was not represented by independent counsel with the argument that he or she was taken unfair advantage of, which would not have taken place if they had their own attorney. Eliminate this argument. You should each have your own independent legal counsel.

3. Be certain no time pressure exists when the agreement is signed. An agreement may not be valid if a court later decides it was signed under duress or pressure a few hours or days before the wedding. We believe there should probably be at least 30 days between the time you sign your prenuptial agreement and the date you are married. Sometimes this isn't possible, but signing a few days before the wedding increases the possibility that an argument will be made that the agreement was signed under pressure.

4. Be sure that there is adequate compensation for any spouse waiving legal rights. An agreement that is unconscionable in the opinion of the court will not be upheld. Don't try to get something for nothing. Be reasonable.

Although there is no way to guarantee that a court will uphold your prenuptial agreement, these suggestions will increase the probability that your prenuptial agreement will be effective and enforceable and do the job you created it to do.