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How to Invalidate a Prenuptial Agreement

Tuesday, March 19, 2013 11:00

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You might think you have an iron-clad prenup, but do you really?

It may not be as hard as it looks to get a prenup tossed out in court. The simple fact of having a prenuptial agreement in place doesn’t necessarily mean that it can’t be found invalid.

At the end of the day, a prenuptial agreement is a contract. And if a contract isn’t done right, it may not be enforceable.

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A prenuptial agreement is an agreement made in anticipation of marriage. (Take a look at a sample here.) It specifies the rights and obligations of the parties and typically includes terms for property distribution in the event the marriage terminates.

There are several ways to potentially invalidate a prenup. Here are some arguments that may work:

Fraud. If a party is induced into signing the prenup through false promises or pretenses, the prenup can be invalidated under the theory of fraud.

Duress. A prenuptial agreement drafted too close to the wedding date may come with a presumption of duress. Basically, the court assumes that with the impending nuptials, the signing party was pressured into signing the prenup.

Unfair requirements. A clause which gives one spouse a grossly unfair advantage over the other one will be seen as unfair. Unreasonable demands might be ruled unfair too, such as demands that one spouse not gain weight during the marriage.

Illegal clauses. While the entire prenup may not be invalidated if there are improper clauses, those clauses themselves can be invalidated. This generally includes child custody arrangements and other clauses that are not allowed in prenups.

Not having a divorce attorney review the prenup. Both sides should have a lawyer. If one spouse doesn’t, then the prenup could be invalidated, unless the spouse has also signed a waiver of counsel. That waiver should be signed with full informed consent.