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You might think you did everything by the books when it came to drafting, negotiating, and signing your prenuptial agreement. So, how can your soon-to-be-ex-spouse be trying to persuade the judge to toss it out of court?
It is not uncommon for a spouse to have a change of heart, have second thoughts, get greedy, or even get smart when it comes to enforcing an out-of-fashion premarital agreement. But, as both divorce and prenups become increasingly routine, so do cases in which agreements are held invalid for a range of legitimate to technical reasons. Prenups only offer the intended protection if done right under the laws of your state.
Whether you are trying to draft an enforceable agreement or hone in on defensible grounds for getting a prenup revoked, here are some reasons an agreement may be found not enforceable:
The agreement is not in writing.
Most jurisdictions require a prenuptial agreement to be in writing to be legally enforceable. Oral contracts of any variety are almost impossible to enforce because there is no clear record of the negotiations or final terms. Prenuptial agreements—like many formal contracts—must be written in a recordable format, similar to real estate deeds.
Lack of independent counsel.
Film and television have portrayed the image of a well-to-do family quietly drawing up an ironclad agreement for an outsider to sign before marrying the heir to a small fortune. Perhaps an intimidating lawyer assured the character, “this is boilerplate. Every member of this family has signed one for six generations. You’ll never even have to use it.” One of the several aspects of this scenario that make it unrealistic is the outsider character’s lack of legal representation.
Prenuptial agreements are meant to represent the separate interests of all parties—sometimes more than the two parties getting married if a family business or inheritance is at stake. Many states advise that both parties to a premarital contract be represented by their own attorneys for the agreement to be enforceable.
Someone didn’t read the fine print.
Did one party flash the agreement in front of the other, hastily point, and say, “sign here”? In some courts, this is a no-go. A prospective spouse must have time to review, consider, and understand an agreement before signing it.
Unconscionable provisions are contrary to good conscience. This mouthful of a word is a contract law doctrine that describes terms that are overwhelmingly in favor of the party with the upper hand and thus profoundly unjust. If a contract suggests that there was abuse during its formation, or if its terms are blatantly oppressive or unfair, a court may refuse to enforce it. The disadvantaged party can use an unconscionability defense by showing that he/she had no meaningful choice in signing the agreement. Both the manner of negotiation and the contract itself can be found unconscionable.
Information is false or incomplete.
A prenuptial agreement is only valid if entered into it with full understanding and disclosure. If one person undervalues, misrepresents, or hides certain assets, the other party will have grounds to label the agreement fraudulent. Both parties are obligated to exchange all assets and liabilities.
Failing to disclose all important information can be as bad a providing false information. If significant financial information is incorrect or missing from a prenuptial agreement, the entire agreement is at risk.
Parties to a prenuptial agreement pretty much have free range in deciding what it should include. A prenup can cover just about any financial aspect of the couple’s relationship. However, no premarital agreement can legally waive or modify child support obligations to which a party would otherwise be entitled. You will also be hard-pressed to find a judge who will uphold provisions about the frequency of sexual relations, weight gain, and the number of hours per week a party may spend on the phone with his/her mother. Naturally, any illegal provisions would also be found null and void.
You might have guessed that a prenuptial agreement cannot be signed after the wedding. Also, if your spouse wants to exchange rings at the same time as you exchange signatures on a prenup, you should probably walk back up the aisle and figure that out before saying “I do.” A good rule of thumb is to sign the prenup as far in advance as possible, but at least thirty days before vows are exchanged.
One party signed without mental capacity.
If one party can prove that he/she did not have the mental capacity to understand what he/she was signing—e.g., under the influence of drugs or feverish—the prenuptial agreement is probably invalid.
Duress or coercion.
It is crucial that a prenuptial agreement be signed voluntarily by both parties, of their own free will. A party who was threatened or forced to sign along the dotted line has a strong chance at getting the agreement thrown out.
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