Grounds For Invalidating Prenuptial Agreements

The advantages of prenuptial agreements

Everyone expects, when they marry, that their union will last forever. However, as of 2012, approximately half of all marriages ended in divorce, according to the Centers for Disease Control and Prevention. Is it any wonder, then, that more people are turning to
prenuptial agreements to provide protection for their assets?

A prenuptial agreement can be defined as a written contract drawn up between two people contemplating marriage with provisions that set out the possession and control of assets and property, the treatment of any future earnings, and the potential division of property in case the marriage is dissolved later. They have many advantages, the two most prominent ones being, to protect financial stability, and to reduce conflict that might arise over particular issues in the future.

The disadvantages; grounds for invalidity

There is, of course, a downside to prenuptial agreements. Until recently, such agreements were considered difficult to revoke. Lately, though, more courts are recognizing grounds for invalidity:

• Fraud: When enacting a prenuptial agreement, each person should make a full disclosure of his or her assets. Unfortunately, it is a common practice for some to fail to disclose assets or to undervalue them. If one spouse can prove that the other spouse engaged in this practice, the spouse may be able to have the agreement invalidated when getting a divorce.

• Coercion, duress, or lack of mental capacity: While coercion or duress may be difficult to prove, it is not unprecedented that a prenup is invalidated based on same. Similarly, if one of the parties did not understand the agreement because of lack of the mental capacity-maybe caused by illness or use of drugs-this may prove a sound reason for invalidation.

• Lack of legal representation: Both parties should have independent counsel. Signing any contract without proper legal representation is not a good idea, to say the least. If one of the parties did so, this may be another factor to support a claim to invalidate.

• Provisions against public policy: Although divorce judges might not weigh in on the peculiarities of prenups, there are always exceptions to this rule. The following are some examples of invalid and unenforceable provisions: Absolutely no child support in the case of divorce; and provisions about hair color, weight gain, sexual relations (and the frequency thereof), in-law visits, and the like.

A recent notable court case

In 2013, as reported by the New York Post, the wife of a Long Island real-estate developer convinced a judge to invalidate the prenup agreement she had signed with her husband four days preceding their 1998 wedding. The prenup stated that her husband, who had a $20 million real-estate empire, would get to keep everything in case the couple split up.

The wife argued that her husband coerced her signature by threatening to cancel the wedding if she did not sign, even though her family had already paid thousands of dollars for the reception. The appellate court agreed, saying that the husband “fraudulently induced” the wife to sign, finding the husband’s “credibility to be suspect.”

Conclusion

If you are contemplating marriage, and plan to sign a prenuptial agreement, or are going through a divorce and believe that the prenuptial agreement you signed may be invalid, you should immediately contact an experienced family law attorney, who will examine the proposed (or signed) agreement and advise you as to it probable validity.