How to Avoid Having Your Prenuptial Agreement Declared Invalid

By: LawInfo

Published: 07/2009

Prenuptial agreements provide stability and certainty to married couples who decide to divorce but only if the prenuptial agreement was properly executed when it was created. Couples who go through the process of making the sometimes difficult decisions that are included in prenuptial agreements, hiring attorneys and executing the legal document should make sure that their prenuptial agreement will be valid should they need it.

A prenuptial agreement will be declared unenforceable by a Court if any of the following problems occur:

· The prenuptial agreement was not properly executed when it was created. In most states a prenuptial agreement must be in writing and signed by both parties. Some states require that the signatures be notarized. Any amendments to the prenuptial agreement must be executed in the same manner.

· The prenuptial agreement was not executed voluntarily. A prenuptial agreement, like other types of contracts, must be voluntarily executed. That means that both parties must be signing the contract of their own free will and without any type of coercion. Each party must also be represented by independent counsel if they so desire.

· The prenuptial agreement is unconscionable. In other words, the agreement cannot be grossly unfair. Each state has its own case law, or common law, which defines what is unconscionable. The agreement should not be unfairly one sided or shock the public conscience. It cannot require either spouse to do something illegal in exchange for money nor can it give a financial incentive for the parties to divorce.

· One or both of the spouses did not fairly and fully disclose all relevant information to the other spouse prior to the execution of the prenuptial agreement. Each party is entitled to a full and accurate description of the financial assets and financial liabilities of the other party. It would not be fair, for example, for one spouse to hide a million dollar trust fund or expensive vacation property and then claim that the other spouse is not entitled to benefit from those assets because of the terms of the prenuptial agreement that was executed when the other spouse had no knowledge of those assets.

Additionally, particular sections of a prenuptial agreement may be declared invalid by the court. For example:

· Child custody and child support agreements are usually not permitted in prenuptial agreements. Child custody and child support arrangements must be made in the best interest of a child and not predetermined prior to the time that they are needed. Any section about child custody and child support that is written into a prenuptial agreement is likely to be disregarded and deemed unenforceable by a court assuming that the children at issue are the children of both spouses.

· Spousal support agreements are typically permitted in prenuptial agreements. However, many courts will disregard the spousal support portion of a prenuptial agreement if enforcement of the provision would make one spouse eligible for public assistance or if the provision is unconscionable at the time that it is to be enforced.

Prenuptial agreements are important legal contracts that provide certainty to both spouses at the time of divorce or to the surviving spouse at the time of death. However, in order for the agreements to be enforced they must not have any of the problems described above.