When Courts Invalidate a Prenuptial Agreement
A prenuptial agreement (more commonly called a “prenup”) is a contract, and like any other contract, it must be in accordance with state law or a court may deem it unenforceable. And like any legal contract, it is best that each side should each have its own attorney. When experienced lawyers aren’t involved, these common errors can occur and render the prenup worthless.
Prenuptial agreements are fairly versatile documents, at least with respect to financial arrangements after a divorce. However, there are certain things that a prenup simply cannot do. It cannot set out non-financial arrangements, such as who will do housekeeping work during the marriage. It also cannot waive the right to receive child support payments. If these or other invalid provisions exist, the court will either strike the individual provision out or find the entire agreement completely unenforceable.
Circumstances Make it Invalid
A court will look to various circumstances surrounding the creation and signing of the prenuptial agreement. As with all contracts, a prenup will be held unenforceable if signed under duress or coercion. Thus, when making a prenup, it is important to begin well ahead of the wedding date. This allows each future spouse ample opportunity to read, review and discuss with an attorney everything in the agreement. If, for example, the bride signed the agreement an hour before the wedding ceremony, there is a chance a court could find it invalid. However, some states may uphold the contractual agreement on the basis that competent adults can make poor choices.
There Were Hidden Assets or Debts
In order to have a valid prenup, each party must know the other’s general financial situation before signing the agreement. If there are undisclosed assets, it is likely a court would find it invalid if contested. This does not mean that every piece of silverware must be catalogued, but hiding millions in an account offshore when creating a prenup will not work.
Attorneys Weren’t Involved
In order to make sure each party to the prenup is aware of his or her rights, and fully aware of what they are signing, it is a good idea for each future spouse to have his or her own attorney. In fact, in some states a prenup is unenforceable if only one attorney is used. Even when it is not, however, having two attorneys ensures a both parties understand the agreement.
When going through a divorce, a prenuptial agreement can save time, emotional strain and finances. When done correctly, it can provide peace of mind when entering marriage. If you are about to be married, consult a family law attorney to discuss your prenup options.