Enforceability of Prenuptial Agreements

There was a time when prenuptial agreements were treated very cautiously by the courts and it was difficult to enforce them.  The courts took the attitude that prenuptial agreements encouraged divorce, and that this was against the public policy of encouraging marriage.  Times have changed, and now prenuptial agreements are more common and are normally enforced by courts.  However, there are many circumstances when a prenuptial agreement may not be enforced.  These circumstances are as follows:

1.  If there was duress or coercion used to get one party to sign the prenuptial agreement.  Prenuptial agreements must be signed voluntarily.

2.  If the prenuptial agreement is unconscionable.  The prenuptial agreement doesn’t need to be “fair” but it also can’t be overly lopsided in favor of one spouse.

3. If there was no or insufficient financial disclosure.  If parties don’t know about each other’s financial situation when they enter into a prenuptial agreement, then the agreement won’t be enforced.  Usually the financial disclosure that is provided will be documented so that there is proof of this in the future if needed.  Financial disclosure must be fairly detailed.  For instance, it is not enough simply to state that one party owns a business – full financial details of the business must be provided, and perhaps even a business valuation must be done.

4.  Lack of understanding.  One party can always claim that they did not understand what it was they signed.  And this isn’t surprising – prenuptial agreements can be quite complex legal documents.  Ensuring that both parties have legal representation before entering into the prenuptial agreement is the best way of dealing with this issue.

5.  Time pressure.  Starting to negotiate a prenuptial agreement the night before your wedding is, well, far too late.  There should be a reasonable amount of time so that issues can be thought about and negotiated, legal representation can be obtained, financial disclosure can be given, and so on.  Some states specify a minimum amount of time for the process – often requiring at least 7 days.  Realistically, even 7 days is not much time.

As well, anything that would make a normal contract unenforceable also applies to prenuptial agreements.  So, for instance, if there is fraud involved, a prenuptial agreement will not be enforced.

The best way to ensure that a prenuptial agreement is enforceable is, not surprisingly, to use attorneys.  Each party should have their own attorney represent them in the negotiation and drafting of the prenuptial agreement.  Your attorney can ensure that proper procedures are followed, that proper financial disclosure is given, that the prenuptial agreement is worded properly and that each party understands what their rights and obligations are under the prenuptial agreement.


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