Last week, we wrote a post about prenuptial agreements and the importance of this contract in family law and high asset divorces. Additionally, we talked about the many different topics you can, and can’t, include in a prenuptial agreement. Today, we want to continue that discussion by talking about the other side of prenuptial agreements: how they can be legally challenged and invalidated.

Prenuptial agreements are like other contracts, in that they must be compliant with the law and appropriate in total. However, there are circumstances where the prenuptial agreement may be illegal or otherwise invalid. One example of this is if one of the spouses was pressured into signing the contract in a short period of time, or if they weren’t given enough time to fully consider all of the provisions and consequences of signing the prenup.

Another example of this is if the contract itself is dubious or faulty. This is a vague phrase, but it includes:

  • Not having an actual written prenuptial agreement (verbal agreements don’t count)
  • Failing to actually sign the prenup
  • Lacking independent counsel to ensure a fair prenup and an enforceable agreement

There is also the concept of conscionability. This means that if a prenuptial agreement is signed it should be balanced in some way so that one spouse isn’t grossly underrepresented in the contract. A judge could deem the prenup “unconscionable” if it is tilted too far in favor of one spouse, leading to some of or all of the prenup being invalidated.