Why Your Prenup Might Not Hold Up 

Prenuptial agreements are valuable contracts that help couples to clarify their financial expectations and to protect assets before entering into a marriage. While these agreements can provide stability and prevent disputes in the event of a divorce, not all prenuptial agreements are ultimately enforceable. Certain conditions, such as lack of full disclosure, coercion, or failure to meet procedural requirements, can cause a court to declare the agreement unenforceable. If you’re considering a prenuptial agreement or relying on one already in place, it’s important to understand what can make a prenup invalid. Below, we have included the most common reasons why prenuptial agreements are ruled unenforceable and what you can do to protect yourself. 

What is a Prenup?

A prenuptial agreement (commonly known as a prenup) is a legally binding contract entered into by two individuals before marriage that outlines the distribution of assets, debts, and financial responsibilities in the event of divorce or separation. The agreement typically addresses issues such as:

• Division of marital and separate property
• Spousal support (alimony)
• Management of future earnings or business income
• Protection of family inheritances or trusts
• Debts and financial liabilities
• Provisions for children from previous relationships

While prenups are typically most common when one or both partners have significant assets, prenups can also be valuable in second marriages, blended families, or when one partner owns a business.

What Makes Prenuptial Agreements Unenforceable

Just because the couple agreed to the prenuptial agreement does not mean that it will hold up in court. This often happens because terms are entered into the agreement that are generally unenforceable, regardless of whether or not it was signed off on by both parties. Here are some of the most common reasons that courts find prenuptial agreements unenforceable.

You Or Your Partner Was Not Fully Forthcoming 

In every prenuptial agreement, both spouses must provide full and accurate disclosure of all assets and liabilities they bring into the marriage. This includes disclosing income, real estate, investments, debts, business interests, retirement accounts, and any other financial holdings. If either party fails to disclose assets or intentionally conceals financial information, the validity of the agreement can be seriously compromised. Courts may view the prenup as unenforceable, particularly if one spouse can demonstrate that they were misled or lacked crucial financial information at the time of signing. 

Transparency ensures that both parties fully understand the financial landscape they are entering into and can make informed decisions about their rights and obligations. If a spouse is unaware of substantial business assets or hidden debts, they cannot make an educated decision about asset division or potential spousal support.

It Is Unconscionable

A prenuptial agreement can be deemed unenforceable if it is found to be unconscionable, meaning it is so one-sided or unfair that it shocks the conscience of the court. If the terms of the agreement heavily favor one spouse to the detriment of the other, it may be considered unconscionable. For instance, if a prenup gives one spouse virtually all of the assets while leaving the other spouse with nothing, the agreement may be challenged and rendered unenforceable. Unequal division on its own, however, does not mean that it is unfair.

A Partner Was Coerced

For a prenuptial agreement to be enforceable, both parties must enter into it voluntarily, without coercion, pressure, or duress. Courts will closely scrutinize the circumstances surrounding the signing of the agreement to determine whether one party was unfairly pressured, especially in cases involving emotional manipulation, financial imbalance, or limited time to review the contract. For example, if the agreement was presented shortly before the wedding or one party lacked sufficient opportunity to seek independent legal advice, a judge may find the prenup unenforceable. 

Courts are particularly sensitive to scenarios where one spouse holds significantly more power, financially or otherwise, and uses that position to pressure the other into signing. However, mere reluctance to sign or an ultimatum, such as refusing to marry unless the agreement is executed, is typically not enough on its own to prove coercion. There must be clear evidence that the agreement was not entered into voluntarily and with complete understanding of its terms.

It Was Not Written Down

The first rule of agreements is to always get them in writing. Even though you are in love and fully trust your partner, do your future self a favor and get more than a verbal promise. Write it down.

Prenups must be in writing to be legally binding. Without a written, signed, and properly executed agreement, there is no legal basis to enforce such a commitment. While text and email communication may be considered written communication, the court likely will not recognize it. Courts require prenups to be in writing to prevent disputes over who said what and to provide a clear record of the agreed-upon terms. 

No Lawyer Was Involved

When it comes to prenuptial agreements, having a lawyer involved is a good idea. In fact, both parties should have a lawyer, and that lawyer should be a family law attorney with experience resolving divorce and custody cases. General contract attorneys, probate and estate attorneys, or just inexperienced general practitioners may not know the ins and outs of what a prenuptial agreement requires in order to be enforceable. You cannot write a prenuptial agreement like you would write a will; the court applies the laws regarding divorce and custody to the validity of a prenup, not probate and estate laws!

Not having counsel does not necessarily mean that the agreement will be deemed unenforceable from the outset. However, it is good insurance to show that both parties understood what they were signing, and having lawyers involved is an argument to the court that the terms were fully explained. In the event that either party contests the prenuptial agreement in the future, having a lawyer (or two) involved at this stage is prudent.

How Can You Make Sure Your Prenup is Enforceable?

While, as we mentioned, no prenuptial agreement is 100% enforceable, the following factors will give you the best chance at having the agreement hold up in court: 

• Provide full financial disclosure 
• Sign the agreement well before the wedding
• Avoid pressuring your partner
• Put everything in writing
• Have independent legal representation
• Ensure the terms are fair and reasonable 

Remember, cutting corners leaves you at risk that the judge will invalidate the agreement when it matters most. 

Contact an Experienced Family Law Attorney

Those considering marriage should consider whether a prenuptial agreement is right for them. Prenuptial agreements can provide a significant level of protection and clarity in the event of divorce or separation. However, a prenuptial agreement will only be enforceable if it is created and executed properly. A skilled family law attorney who has drafted prenuptial agreements can help you create a prenuptial agreement tailored to your specific needs. Work with a lawyer who understands what it takes to draft a legally enforceable prenup.