In Terrorem Clause in Prenups

In Terrorem Clause

In Terrorem Clause in Prenups/Photo by Karolina Grabowska from Pexels

Worried the other side will challenge your prenup?  You may want to consider an interrorem clause.

In Terrorem

“In terrorem” is Latin for “in terror” or “in fear”.  When used in the context of a prenuptial agreement, it is a clause that “instills fear” in the signor, thus disincentivizing them from challenging the prenup.

Used in Conjunction with a “Gift Clause”

What would discourage someone from challenging something?  The possibility of losing something better.

For example, if the prenuptial agreement provides wedding gifts upon every year of marriage, an in terrorem clause would state that the gifts would be forfeited if the prenup is challenged.

Are In Terrorem Clauses Enforceable?

That depends on the situation and state.  Enforceability is always the issue when contracts like prenuptial agreements are involved.  No lawyer can ever guarantee a prenuptial agreement is enforceable.  Like bulletproof vests (which are actually bullet-resistant, not bulletproof), all prenuptial agreements can be challenged.

Strengthen Your Bargaining Power

You should view your prenuptial agreement as an instrument of bargaining power – use as a shield rather than a sword. A carefully drafted and well-planned prenuptial agreement (where both parties are represented by independent counsel) will be hard to challenge.

At the very least, it will be an uphill battle for the person who wishes to challenge it, especially if they stand the chance of LOSING gifts!

The Certainty of Gifts Beats the Possibility You May Get More if You Challenge

In terrorem clauses should be drafted with plenty of incentive.  The more the other party stands to lose, the less likely they will challenge the agreement.

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