Reasons a Prenuptial Agreement Might be Invalid

According to a survey by the American Academy of Matrimonial Lawyers (AAML), 62% of divorce attorneys reported increased prenup requests in recent years. Prenuptial agreements are contracts that couples sign before they tie the knot.   The agreement outlines what happens to a couple’s assets, property and debt on break up.  Agreements were once used only to protect the partner with deeper pockets, high-value assets, or family money from losing their wealth in a divorce.   Now, couples of all income levels put together agreements so they have certainty and to avoid the stress and expense of fighting over money in a break up. However, prenups have to be properly drafted in order to be valid. If your agreement is not valid, it opens the couple up to risk that the agreement won’t be followed and it’s as though the agreement was never done.

Why Your Prenup May Be Considered Invalid

Let’s look at some of the top reasons:
  1. Hiding Money: It is important to disclose all your assets when drawing up a prenuptial agreement for it to hold up in court. Failure to disclose all of the significant money or assets owned by the spouse, or undervaluing the assets while drawing up the prenup are grounds for it to be ignored  in a divorce.
  2. Signed Under Duress:If a spouse states that they were coerced into signing the prenup, while signing, the prenup could be invalidated. However, coercion can be difficult to prove, and the legal definition of coercion varies from state to state.  This could also include prenups that have been signed without having been read or where the spouse has been made to sign several documents including a prenuptial agreement without being given sufficient time to read through and understand every clause in the agreement.
Duress can also be argued where the agreement is presented to be signed on the “eve” of the wedding.  Typically, we suggest the agreement be signed at least 4 months before the wedding but the longer the better.   What if you are on the eve of the wedding and you want the agreement to be signed?  It’s a simple fix.  You will both agree to sign the “prenup” after the wedding.  It will have the same effect as if you signed it before the wedding but without any risk of being invalidated for duress.
  1. Not In Writing: To be enforceable, prenups need to be in writing. A written contract ensures that both parties have understood their obligations. It also prevents “he said, she said” disputes.
  2. Absence of Independent Counsel: Since the interests of both parties are at stake, it is important that you make sure both sides have their own, independent lawyer.   Not having legal advice can be one of the quickest ways to have your agreement overturned.
  3. Unconscionable Provisions: Prenups can be very specific.   Depending on the understanding between both parties, a spouse might agree to give up significant rights which can include inheritances or spousal support.   While we do our best to create agreements that withstand judge’s scrutiny, sometimes, the judge still may overturn a properly drafted agreement if it would be unconscionable to allow it to stand.  This situation is very rare.  Judges don’t like to interfere with agreements a couple reaches on their own.    An unconscionable agreement is one that is so  lopsided or grossly unfair it would cause severe financial hardship to one partner while the other prospered.  For example, an unconscionable scenario might be where one person needs government assistance to meet basic needs and the other spouse owns several properties and has a well paying job.
Other provisions that won’t hold up include prenups that seek to penalize a spouse for certain things in the relationship like gaining weight or not looking like they did at the time of marriage, specifying the frequency of romantic relations or even anti cheating provisions are all invalid.  
  1. Invalid Provisions: Prenups that are used to try to skirt the law using invalid provisions like the waiving of child support or any other agreement that would be violating the law would be termed invalid and will be ignored by the court. However, in certain cases, the court could strike off any illegal or invalid clause and enforce the rest of the agreement.
  2. Not Enough Consideration Time: Prospective partners entering into prenups must have enough time to review, think the terms over, and also discuss the provisions with their respective attorneys. Situations, where a groom might hand over the agreement to the bride minutes before the ceremony and ask her to sign it, will not be seen favorably by courts and the agreement could be termed invalid. 
ConclusionIt is important that you consult with experienced legal professionals as they have the knowledge and expertise to help you plan a secure financial future before you say I Do.