Nothing says ‘romance’ like negotiating a prenuptial agreement in the months leading up to your wedding, right?
But, as awkward as it may seem, negotiating a prenuptial agreement with your future spouse is practical and a good idea, particularly if one spouse has more assets than the other. Prenups are a way for both people to go into their marriage with full knowledge about their partner’s finances and with certainty about what will happen if they break up.
But first, before discussing the enforceability of prenups, let’s first define the term.
What’s a prenuptial agreement?
A prenup is a contract between two people that is signed before marriage and determines the rights of each party in the case of separation. They’re not just for the rich and famous—even people with regular incomes use them to address their assets, children from previous relationships, etc. In fact, prenups have become even more popular in recent years with millennials.
There are many reasons to get a prenup, and they can cover so many different areas, like:
- Property division
- Assets before marriage and acquired during the marriage
- Debts
- Tax filing status
What can void a prenup agreement?
Do prenups hold up in court? The answer is—if done correctly, yes. The following issues can void a prenup agreement:
1. Unconscionability
The agreement can’t include portions that are blatantly unfair, or unconscionable, to one of the parties. Unconscionable has been defined by a court as follows: “An agreement is unconscionable if it is one which no person in his or her senses and not under delusion would make on the one hand and no honest and fair person would accept on the other, the inequality being so strong and manifest as to shock the conscience and confound the judgment of any person of common sense.”
If a prenup is found to be unconscionable, a court will likely strike it down.
2. Failure to disclose
Both parties must fully and completely disclose all financial details to the other party. If it’s found that one party hid assets, a court may find that the agreement is void.
3. Duress or coercion
Both parties must sign the prenuptial agreement without being pressured or coerced by the other spouse. In other words, the state of mind at the time of signing is key.
4. Fraud or false promises
You can’t have a fraudulent term or make a promise that’s incapable of being performed in a prenup.
5. Spousal support limits
Some states have laws that call for adjustments to be made to prenuptial agreements if one of the spouses would have to go on public assistance after a divorce. No valid prenup can provide less support than what is required by state law.
A valid prenup must meet the following requirements
Prenups are enforceable, for the most part, if they meet these conditions:
- Must be in writing – Oral agreements won’t hold up in court.
- Must be signed by both spouses – Both parties must sign the final agreement.
- Must have received complete information about other spouses’ property and finances – All assets and liabilities must be disclosed to the other party.
- Must have had at least seven days to review before signing – A prenup can’t be signed on the way to the altar—there must be at least a one-week period to go over the details of what’s included before signing it.
- Must have been represented by a separate attorney or waived the right – Each partner must have had the opportunity to consult their own independent lawyer—or gave up that right.
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