There are a few reasons why a prenup, or certain provisions of a prenup, may not hold up in court.
Improper Spousal Support Provision
In order for a provision regarding spousal support to be valid and enforceable in court, the partner against whom enforcement is sought after, must have been represented by counsel. Additionally, in order for a provision regarding spousal support to be valid at the time of enforcement, it must not be unconscionable.
Now, this means that you can have created a prenuptial agreement that was fair at the time of signing, however, if years later, the enforcement of that provision would be considered unconscionable (AKA unfair), then that specific provision will not be enforceable.
That does not mean the entire agreement won’t be enforceable, but specifically just that provision wouldn’t be enforceable.
Involuntary/Duress/Undue Influence, Unconscionability, Failure To Disclose
A prenup will be considered unenforceable if the partner can prove that they did not voluntarily sign the prenuptial agreement. However, if the partner has independent counsel, the excuse of involuntarily signing the prenup will be mitigated. If there’s any threats made to get a partner to sign the prenuptial agreement, it will be unenforceable. If a partner was under the influence or lacked capacity to also enter the agreement, in their sound mind, it will be unenforceable.
Additionally, if a prenuptial agreement is unconscionable, to the extent it is extremely one-sided, a court will not enforce the prenup. Prenuptial agreements are meant to be fair for both parties. That doesn’t mean that all assets and debts should be split 50/50, but it does mean that if one partner is essentially going to be desolate upon divorce, then the court is not likely to enforce the agreement.
During the process of creating a prenuptial agreement, there must be a full disclosure of each party’s assets and debts, so both partners are fully aware of the other partner’s financial position and financial situation. This also allows the partners to make fully informed decisions when signing the prenuptial agreement. Disclosures do not have to be a formal process, but we like to create separate exhibits listing each partner’s assets and debts, which accompany the prenuptial agreement.
Waiting Period Violated
Regardless of whether a person has independent counsel or not, there is a seven (7) day waiting period that is mandatory. Once both partners have the final version of the agreement, there must be a full seven days that has passed before signing the agreement. If the full waiting period is not utilized, the prenuptial agreement will be voided.