If you are asking whether your prenuptial agreement (prenup) can be invalidated, chances are you and your spouse have signed one. And now, one of you may be disputing its terms. Can your prenup be invalidated, or is it considered an inviolable contract "written in stone?"

Once considered the purview of the ultra-wealthy, prenups (and postnups) are increasingly common as a couple seeks to spell out the expectations and terms of their marriage before they say, "I do." Designed to pre-empt potential issues and exposures that may arise in the event of divorce or death, prenups spell out the details regarding the allocation of assets and property acquired prior to and during the marriage, as well as alimony or spousal support, retirement benefits and even a share of a deceased spouse's estate.

 

51% of attorneys reported an increase in the number of prenuptial agreements requested by their clients

 

How binding is your prenup?

Your prenup is as binding as any contract. And, like any contract, your prenup may be subject to negotiation (prior to signing) and even renegotiation. However, because the parties to a prenup stand in unique relation to each other, the way the courts interpret prenups differs somewhat from “arms-length” commercial contracts.

Can my prenup be invalidated?

A prenup, like any contract, may be challenged in court on the following grounds:

  1. The agreement is fraudulent. What does that mean? Fraud can take a number of forms, but one of the frequent ones is that someone lied about their assets or failed to fully disclose his/her income at the time you signed your agreement. If you can prove that your soon-to-be-ex was not entirely forthcoming or hid assets or income when you signed your prenup, you may have grounds to have that agreement thrown out.
  2. You were pressured or pressured your spouse, coerced, or were coerced, or forced to sign the prenup under duress. For example, if someone holds a gun to your head and forces you to sign the prenup, you have been pressured, coerced, and forced to sign the prenup under duress. Although difficult to prove, if you (or your ex) can prove coercion or duress (lacing a smoking gun), there may be a sound legal reason to invalidate it.
  3. There is a technical error or defect with the prenup itself. In New York, prenuptial agreements must have a signature block at the end of the document that includes a specific notarization and “acknowledgments.” If the document is not notarized or the acknowledgments are missing, courts in New York State can and will rule that the prenup is a non-valid agreement. Careless errors or a poorly drafted prenup may render a prenup less than airtight and possibly invalid.
  4. The conditions or demands of the prenup are "unconscionable." If you or your spouse can prove that the prenup signed included terms no reasonable person would agree to, that prenup may be found invalid. For example, if you or your fiancé have been induced to give up all rights you might ever have to the custody of children or any of the assets accumulated during the marriage, that prenup may be invalidated. If the prenup terms are so egregious, one-sided, or punitive as to be unconscionable, a court would be entitled to set it aside.
  5. Were you or your spouse represented by an attorney? As in any contract, both parties to a prenup should have separate and independent legal representation. If you or your spouse signed your prenup without the advice of counsel, that agreement might not be ironclad.

 

Top 3 Reasons Couples Sign Prenups

 

If you have questions about whether a prenuptial agreement is right for you, or you have signed a prenup you think is invalid, let's talk. Navigating these issues without the benefit of legal counsel can be tricky. I'm Dan Stock, and you can reach me at 475-232-4105 or email me at dhstock@danielhstockpllc.com for a confidential consultation.