Fighting a Prenuptial Agreement

A prenuptial agreement, or premarital agreement, is an agreement entered into by two individuals prior to marriage which establishes property and/or financial rights in the event of a divorce or separation. Anyone getting married may enter into a prenuptial agreement. In many cases, individuals entering into second or third marriages who have substantial assets consider this type of agreement prior to marriage.

There is a common negative perception of these agreements that individuals who use them have trust issues. However, in many cases, the opposite is true. Prenuptial agreements include a full disclosure of assets prior to a marriage. They can be a responsible way to prepare for the worst, but may also be invalid or unenforceable. 

Can I Fight a Prenuptial Agreement?

Yes, there are ways to fight a prenuptial agreement. Prenuptial agreements may be invalid or unenforceable for reasons including:

• The agreement was not properly executed;
• A party had insufficient time to review the agreement;
• The agreement includes invalid provisions;
• The agreement includes false and/or incomplete information; and/or
• The agreement is unconscionable. 

Each of these reasons will be discussed in further detail below.

For What Reasons Can a Prenuptial Agreement be Invalid or Unenforceable?

There are several reasons a prenuptial agreement may be invalid or unenforceable. Should a court rule the agreement is unenforceable, the assets will be divided according to the dissolution of marriage laws in the state in which the parties reside.

One reason a prenuptial agreement may be invalid or unenforceable is the agreement was not properly executed. To be valid, the agreement must be in writing and signed by both parties prior to the wedding. A prenuptial agreement differs from a postnuptial agreement although they may contain some of the same provision. Failure to enter into the premarital agreement is a valid ground to refuse to marry that party. If the agreement is not completed prior to marriage, it may be classified differently and failure to agree to the terms cannot be held against either spouse.

Additionally, both parties to a prenuptial agreement should, and in some states are required to, be represented by their own attorneys or the agreement will not be enforced. The agreement will not be valid if a spouse was pressured into signing the document under duress.

Another reason the prenuptial agreement may be invalid or unenforceable is one party was not given sufficient time to review it prior to the agreement. Some jurisdictions provide a number of days for the spouse to review the agreement prior to signing. Therefore, if the groom hands the bride a pen right before she walks down the aisle, the agreement is likely invalid.

A prenuptial agreement may also be valid or unenforceable due to invalid provisions. These agreements may cover any type of property or asset but cannot include provisions:

• That dictate what child support obligations either spouse would have if the marriage should end in divorce or separation;
• Of a sexual nature; and/or
• Any other provision that violates the law.

In some cases, the court may simply strike out the invalid clauses and enforce the remainder of the agreement.

If the prenuptial agreement contains false or incomplete information, it may be invalid and unenforceable. These agreements are only valid if both parties enter into them with full disclosure. Full disclosure includes providing any and all information regarding:

• Income;
• Assets;
• Liabilities; and/or
• Debts.

If one party provides false information, or fails to provide material information, the agreement is considered invalid. Unlike striking the invalid provisions mentioned above, failing to disclose information renders the entire agreement invalid and unenforceable.

Lastly, a prenuptial agreement may be invalid or unenforceable if it is an unconscionable contract. Unconscionable contracts are generally invalid. Parties may agree to terms that may seem unfair to one party, such as the right to alimony or spousal support and/or who gets the home and vehicles, but if the agreement is so one-sided that a party would face severe financial hardship while the other prospered, the court is likely to find the agreement is unconscionable and unenforceable.

Should I Consult an Attorney for Help With a Prenuptial Agreement?

Yes, you should consult with an experienced family lawyer prior to signing the agreement, if any modifications need to be made, and/or should any disputes arise from the agreement. If you find yourself in the midst of a divorce and you signed a prenuptial agreement, an attorney can review the document for you and determine whether it may be unenforceable. 

Separation and divorce can be extremely difficult and emotional and it is important to have an attorney to explain and protect your rights as well as represent you during any court proceedings, if necessary. Having an attorney may mean the difference between financial failure and financial success after a divorce.