Every couple expects, when they marry, that their marriage will last forever. Unfortunately, however, the statistics indicate that at least half of these couples are wrong.
A prenuptial agreement can provide financial stability as well as reduce certain conflicts that may arise in the event the marriage is subsequently dissolved. Typically, they address the division of assets and treatment of future earnings and are most often designed to protect the spouse with greater premarital assets and earnings from losing an unfair part of that wealth in the event the marriage is subsequently dissolved.
Until fairly recently, such contracts were considered difficult to set aside. More and more courts, however, are recognizing grounds for invalidity. Needless to say, a poorly-drafted prenup can be a source of lengthy and costly litigation.
Although not an exhaustive list, the following are some of the most common mistakes couples make that can weaken or completely invalidate a prenuptial agreement:
- No Independent Legal Representation. Each party should have their own attorney prior to executing their premarital agreement to ensure that both sides comprehend and voluntarily agree to its terms.
- Not Properly Executed: The prenup must be in writing, signed prior to the wedding, and witnessed by a notary public. Perhaps one of the most infamous prenup fails was between Steven Spielberg and Amy Irving; they wrote their prenup on a napkin and neither signature was notarized. Ultimately, this little blunder cost Spielberg $100 million!
- Involuntariness: If one party is pressured into executing the agreement (duress) or lacked mental capacity (such as being under the influence), the contract will likely be invalidated.
- False or Incomplete Information: The agreement is valid only if entered into after full and accurate disclosure by both parties. If one party fraudulently misrepresented a material fact and the other party relied on that information in signing, the agreement will likely be thrown out.
- Provisions Against Public Policy: Although divorce judges may not routinely scrutinize atypical provisions, there can be exceptions such as clauses relating to weight gain, sexual relations, or the like.
- Too Soon Before Wedding: If executed too soon before the wedding, a spouse may be able to argue that he/she was coerced into signing for fear of cancellation of the wedding.
- Unconscionable: Where the court determines that the agreement is so one-sided as to be “shocking to the conscience” it will be thrown out.
- Ambiguous: Just as with any contract, if the verbiage is unclear or otherwise subject to interpretation, it may be successfully challenged.
In sum, if you are contemplating executing a prenuptial agreement or are going through a divorce and believe that your agreement may be invalid, you should contact an experienced matrimonial attorney.