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One question frequently asked by couples regarding prenuptial agreements is if they are enforceable or not. The answer to that question is yes, provided that it does not contain terms which could make the contract unconscionable under law. A court will look at various factors to decide what constitutes such an unconscionability determination.
Unconscionableness
Prenuptial agreements are legal documents designed to help couples protect any wealth brought into a marriage before it officially begins. Courts recognize prenups provided they are written, signed by both partners, and include an inventory of assets and debt accumulated prior to marriage.
Even if your prenup is legally compliant, a judge could still find it unenforceable because it was unfair when signed. Courts evaluate contracts according to how they existed when you signed them – not at the time when enforcement actions are filed for.
To prevent the court from declaring your prenup unenforceable, make sure it is carefully drafted by an experienced Georgetown family lawyer and executed freely and voluntarily without coercion or fraud. Both parties should have enough time to consider it and seek individual legal advice prior to signing it; additionally they must fully disclose all assets (including debts) so as to prevent an arbitrator or judge from finding that your agreement was unconscionable when signed.
Ignorance of the Law
Law regarding prenups is murky and could render one unenforceable due to fraud, duress or inadequate disclosure of assets. Furthermore, one party could fail to have sufficient opportunity for legal consultation before signing their prenup.
Prenuptial agreements may also be invalidated if they contain provisions that limit child support obligations or waive inheritance and homestead rights, although there are exceptions.
Courts should respect the ability of couples contemplating marriage to determine and agree upon what they consider fair distribution of property, but it may be prudent for a court to analyze initial circumstances to assess whether a prenuptial agreement was appropriate.
The Duration of the Marriage
Prenuptial agreements are usually upheld by divorce courts; however, certain clauses can become invalid should circumstances alter during a marriage.
Courts often deem prenuptial agreements unenforceable if they were signed under fraud, duress, failure to disclose all assets or signing too close to the wedding date. Furthermore, judges have declared prenuptial agreements unenforceable when they deemed them procedurally unconscionable.
As part of any prenup, it is advisable to engage separate attorneys when drafting it, which could increase its chances of upholding. Also important is providing full disclosure of assets and debts – failure to do so could result in a judge striking certain provisions out. This is particularly relevant if either spouse alleges coercion or duress as grounds for their signature on the prenup. Allow each party ample time before signing the prenup before agreeing on it.
Lack of Experienced Counsel
Prenuptial agreements vary by state law, but in general they are enforceable if written clearly as contracts. If evidence exists showing either party was not transparent with regards to disclosing all their assets fully then a court may declare the agreement invalid.
Experienced counsel is essential when drafting a prenuptial agreement, particularly if one or both partners possess substantial wealth, property, or business interests that must be protected in case of divorce.
Prenuptial negotiations must also occur well in advance of the wedding date to avoid creating time pressure and any false claims or violations of law. Engaging the services of an attorney to draft your agreement in accordance with contract law will help to ensure it includes a comprehensive listing of assets both present and future.
