Long ago, having a prenuptial agreement was considered stodgy or even insulting, but these days, “prenups” are becoming increasingly common for all couples. Simply put, a prenup formalizes the understanding between spouses-to-be as to which of their assets will become marital property, which will continue to belong to whom individually, and, in the event of a breakup down the road, what financial provisions are to be made.
But couples can run into trouble by not getting proper legal advice from a trusted resource.
Here are five conditions under which a prenup can be invalid:
1. The agreement is fraudulent.
A prenuptial agreement requires each spouse to make full disclosure of his/her assets. In divorce, it is quite common for one party to undervalue their assets so these assets can’t be made part of a settlement agreement. Unfortunately, prenups are prone to this kind of underhandedness, as well. If you can prove your spouse did not fully disclose income or assets at the time you signed the prenup, you may have grounds to have the agreement thrown out, now that you’re getting a divorce.
2. The agreement was coerced, signed under duress or signed without mental capacity.
Coersion or duress can be extremely difficult to prove, and, as with many aspects of divorce law, different states have different standards for what it means to have been coerced into an agreement. Still, it is not unheard of for a prenup to be thrown out on this basis. Similarly, if you can prove that you lacked mental capacity to understand the prenup when you signed it – for example, if you were ill or under the influence of drugs -- this may be a sound reason to invalidate it.
3. The paperwork wasn’t properly filed in the first place.
As with any legal contract, the enforceability of a prenup can come down to the proverbial “crossed t’s and dotted i’s.” Careless errors could render a prenup less than airtight. If the initial agreement was poorly drafted, it may also be invalid.
4. You signed without proper legal representation.
Both parties to a prenup should have separate and independent counsel (in fact, some states actually require that they do). If you signed something that your wealthy fiancé or his family arranged to be drawn up for you to agree to in order to marry him, be aware that this may not be an ironclad agreement if, years later, he wants out of the marriage. Signing a contract without legal representation is never a good idea! But if that’s how you signed your prenup, there may be a chance of invalidating it.
5. The agreement contains ridiculous provisions . . . or is simply too lopsided.
Even though divorce court judges are typically disinterested in most peculiarities of individual contracts, there can be factors that raise eyebrows. For instance, if your prenup states no child support whatsoever will be paid in the event of a divorce, it is likely to be thrown out. Provisions in the prenup about weight gain, hair color, frequency of sexual relations, visits by in-laws -- remember, the judges have heard it all -- are likely not to hold up in court, either.
In summary, in order for a prenup to be effective, both parties must have their own separate attorney. Plus, the prenup must be:
Keep these conditions in mind, not only if you are trying to get out of a prenup you now believe to be unfair, but also if you are thinking about signing one. It is critically important to consult with professionals who have the expertise to help you navigate these sometimes choppy waters and plan for a secure financial future.