Signing a prenuptial agreement doesn’t mean your spouse is planning on divorcing you in 5 to 7 years. It’s actually a good sign. Prenups are way more common these days. Whether you realize it or not, fair legal protection can actually remove a lot of strain from some marriages. However, there are reasons that can prevent a prenuptial agreement from holding up in court.
Not every prenuptial agreement is created equally. A mistake here and there can invalidate the whole agreement. It’s important to examine your prenup so you understand exactly what it covers and what it does not, so that you can keep your rights and priorities secure should you end up facing divorce.
What Is A Prenuptial Agreement?
A prenuptial agreement is a legal agreement that both parties sign prior to marriage. Many people use it to protect financial interests. In this contract, you and your spouse agree on how your assets will be handled before you get married. You can make sure that the separate property of both parties remains separate. However, you cannot mix or commingle your separate property with your spouse’s assets and still claim it as separate property.
Reasons To Challenge A Prenuptial Agreement
For a prenuptial agreement to hold up in court, it must meet several standards. First, the document must be properly assembled and executed. A prenuptial agreement must be:
- Put in writing
- Considered and signed before the marriage begins
- Created without undue pressure on either party
- Reviewed by each party before signing
- Executed only after full disclosure
- Cannot contain unconscionable clauses
- Cannot contain child-related terms
A prenuptial agreement is not an oral agreement, generally speaking. Likewise, a prenuptial agreement cannot take place after a marriage (although post-nuptial agreements are an option). If one spouse does not have time to review the agreement before signing, does not have access to advice from a legal counsel before signing, or signs the agreement under pressure from the other spouse, the agreement may not hold up in court.
Put Into Writing
The state of Texas does not recognize oral agreements and will not enforce them. Prenuptial agreements must be in writing.
Considered And Signed Before Marriage
Prenuptial agreements are only enforceable in Texas if they were put into writing and signed by both of you before the date of the wedding. However, if you only received the prenup after you got married, you can argue that the prenup should not be legally valid.
Created Without Undue Pressure On Either Party
If you can prove that your soon-to-be spouse, their parents or the family attorney forced you to sign the prenup without even allowing you to read it, you can stop the prenuptial agreement from holding up in court. You can also show that you did not have sufficient mental capacity due to illness or drug influence, for example.
Note that simply saying your spouse refused the marriage if you did not sign the prenuptial agreement is not enough to show coercion.
Reviewed By Each Party Before Signing
Both you and your spouse should make sure to have independent legal counsel that will review your agreement before you sign it. Having two different lawyers, one each for either of the parties, will reduce any concerns about conflict of interest. If your fiancé or fiancée at the time drew up a contract for you to sign without having your lawyer look at it, the document might not be valid. However, the court will consider other factors. Not having a lawyer or access to independent legal advice at the time of signing does not alone invalidate a prenup.
If you had reasonable knowledge that you should get a lawyer but chose not to use the opportunity to get legal advice, that could be deemed as ignorance of the law. It will not be held as an argument to invalidate a prenuptial agreement.
A Case When No Lawyer Representation Does Not Invalidate A Prenup
Barry Bonds was a professional baseball player with the Pittsburgh Pirates in 1988 earning $106,000 per year at the time. As he was driving to the airport with his bride-to-be, Sun, to get to their wedding held in Las Vegas, they stopped at the lawyer’s office to sign a prenup. Included in the prenup were terms that stated that Sun would receive $10,000 per month in child support for each child and $10,000 per month in spousal maintenance in the event of a divorce. When both parties signed the prenuptial agreement, Bonds had two lawyers with him. Sun only had a friend as a witness.
Six years later, the couple divorced. At this point in time, Barry Bonds was earning $8 million a year with the San Francisco Giants. Under community property law in the state of California, Sun would have received half his assets and income. However, because of the prenuptial agreement, she could only receive the amounts of $10,000 per month.
Sun’s attorney argued in favor of invalidating the prenup because she did not have legal counsel with her. However, the court ruled that not having a lawyer alone would not render prenuptial agreements invalid.
Executed Only After Full Disclosure
Courts take issue with false or incomplete information in a prenuptial agreement. If the agreement contains bad information, some or all of the agreement may become invalid.
If one party did not perform full financial disclosure of their assets and liabilities, and you have the evidence to prove it, you can ask the court to throw the agreement out.
Cannot Contain Unconscionable Clauses
Unconscionable clauses refer to terms that the courts may consider to be ridiculous or too lopsided to the detriment of one party.
Prenuptial agreements must include only legal and “conscionable” terms. For instance, courts typically do not allow spouses to outline child custody in prenuptial agreements. Likewise, courts are suspicious of agreements that are harshly one-sided. If your agreement states that you will take all of the liabilities from your marriage while your spouse profits from taking all of your marital assets, this may raise eyebrows, at the very least.
If your prenup states that you agree to completely give up your career when you have children, allow your husband or wife to claim all of the marital assets in the event of a divorce, or give up your rights to manage your financial affairs, the court could deem it to be unconscionable to one spouse.
Any terms that are not related to property, assets, or financial matters may not be enforceable. It is simply not practical for the court to enforce clauses that relate to personal issues. For example, this includes requiring your husband or wife to do chores once a week or allowing visits by your in-laws at a particular frequency.
A Case Of Unconscionable Clauses
Hesham Taha and Abier Elzemity signed a prenup before their marriage in 2007. Among the terms, the couple agreed that they did not have the right to each other’s separate property. Any property acquired from the proceeds of separate property even if it was acquired during the marriage. Both kept individual bank accounts. The couple also agreed that the wife, who did not work during the marriage and was the primary caregiver of the children, would only receive a lump sum payment of $20,000 during a divorce and no other spousal maintenance. This was despite the fact that the husband earned $300,000 per year as a doctor who had been practicing since 1987.
The divorce happened. The wife found herself unemployed with only a $20,000 financial settlement to support three children, one with special needs. She had no claim on the family home, which was only in the husband’s name. The husband had entirely used funds from his individual bank account to purchase the home.
Left with the high probability of having to seek public assistance without the financial means to support herself and the children, she filed a legal case. She successfully appealed in 2018 to have the prenup terms deemed unconscionable by the Supreme Court of the State of New York in the United States.
Cannot Contain Child-related Terms
You may not dictate terms relating to child custody, visitation or support in prenuptial agreements. Texas state law does not allow you to waive your obligation to pay child support.
Protecting Your Rights During Divorce
Strong prenuptial agreements are one of the best ways to protect against the difficulty of divorce. However, it is never wise to assume your agreement is airtight without reviewing it carefully. If you find that the agreement is not fair, you may also find ways to challenge it. It is wise to review the document and understand any weaknesses that your spouse might use to his or her advantage.
Respectful divorce is possible, for those who want it that way. Thoroughly reviewing your prenuptial agreement ensures that you understand the tools you have available so you can focus on navigating this difficult season on the way to a fresh start.
If you need help holding up a prenuptial agreement in court or invalidating one, let the award-winning Family Law experts at Sean Lynch help you prepare your legal case. We have decades of experience in family law.
Contact us today for a no-cost case review.