There is a common misconception that prenuptial agreements are only made by people with trust issues to make an airtight seal around their property. The fact of the matter is, prenuptial agreements are really about full disclosure before making a huge life decision, a responsible way to plan for the worst, and are not necessarily as bullet proof as one may think.
Indeed, there are many reasons why a prenuptial agreement may be invalid or otherwise unenforceable. Some of the most common arguments against enforcing a prenuptial agreement are:
To be valid, a prenuptial agreement must be in writing and signed by both parties before the wedding. While a postmarital agreement can accomplish much of what a prenuptial agreement will, one party cannot use the failure to enter into a postmarital agreement as grounds for divorce. By contrast, the failure to agree to a prenuptial agreement is a valid reason to refuse to marry. Therefore, if a prenuptial agreement is not complete before entering into the marriage, but rather after, it may be classified differently altogether and a failure to agree to the terms cannot be held against either spouse.
Also, because their separate interests are at stake, both parties to a premarital contract should, and in some states must, be represented by their own attorneys, otherwise the agreement will not be enforced. Additionally, a premarital agreement may not be valid if one of the spouses was pressured by the other to sign the agreement.
Before entering into a premarital agreement, the spouse must be given time to review it and think it over before agreeing to anything. Some states have statutes that require a certain number of days for the spouse to read and review the agreement. Thus, if the groom hands the contract and a pen to the bride just before she says, "I do," the agreement is likely invalid.
Although a premarital agreement can cover just about any financial aspect of the parties’ relationship, it cannot in any way modify:
- Child support obligations that either spouse would have if the marriage should end in divorce.
- Sexual provisions.
- Any other provision that violates the law.
It is possible, however, that a court will strike the illegal clauses and enforce the remainder of the agreement.
A premarital agreement is valid only if both parties enter into the agreement after full disclosure. Full disclosure usually means any information about:
If one spouse provides the other with information that is not true, or fails to provide important information, the agreement is invalid. Unlike adding invalid provisions, failing to disclose or disclosing false information will render a premarital agreement completely unenforceable.
Unconscionable contracts are generally invalid, and premarital agreements are no exception. Spouses can agree to give up quite a bit – from the right to inherit, to the right to spousal support, and even that one spouse gets all the property and the other gets all the bills. However, if the agreement is so grossly unfair that one party would face severe financial hardship while the other party prospered, a court is likely to find it unconscionable and refuse to enforce it.
If you have signed a prenuptial agreement and are now in the middle of a divorce, you should contact a lawyer immediately. There are many reasons why a prenuptial agreement may not be enforceable, and a family law attorney can help determine what approach would be best for your case. Divorce can be a difficult process, but an attorney will explain your rights and protect your interests so that you receive all that you are legally entitled to.