A premarital agreement, also sometimes referred to as a prenuptial or antenuptial agreement and often abbreviated to “prenup” or “prenupt,” is a contract entered into between a couple before they get married with each other.  As with any other type of contract, the substance of premarital agreements can vary widely to address couples’ unique needs, but these agreements commonly include provisions for the division of property should the couple divorce and any rights to spousal support during or after the dissolution of their marriage.  Historically, judges were reluctant to enforce premarital agreements because of concerns that these agreements encouraged divorce.  At present, however, premarital agreements are recognized in all of the 50 states and the District of Columbia.

Although these agreements are now recognized by the courts, they could easily be declared void and hence unenforceable if they violate certain procedural and/or substantive requirements.  Following is a list of the six common reasons a prenuptial agreement may be declared void and unenforceable by a judge:

1. The agreement was forced upon one of the parties.

The courts require that there be procedural fairness during the negotiation and execution of premarital agreements in order for these agreements to be considered valid and enforceable. For instance, in a case where a groom hands the premarital agreement to his bride an hour before the wedding and demands that she sign the contract or the wedding is off, the court very, VERY, likely will determine that agreement to be invalid and unenforceable against the wife. The parties should be given fair opportunity to review and consider the terms of the premarital agreement and where one of the parties was placed in a difficult position and forced to sign the document, the premarital agreement will likely be ruled void by the court if it is later challenged by that party.

To prevent such abuse, states like California have implemented laws requiring “hold periods.”  Section 16151, subdivision (b), of the California Family Code requires that in order for a premarital agreement to be enforced against a party, that party must have been given “not less than seven calendar days between the time that party was first presented with the agreement and advised to seek independent legal counsel and the time the agreement was signed.”  Cal. Fam. Code § 1651(b)(2).

2. One of the parties was not represented by independent and impartial counsel.

As with any other important contract, it is recommended that both parties to a premarital agreement be represented by separate counsel. In fact, a few states require such representation, while other states, such as California, permit informed waiver by the unrepresented party. In order for the waiver to be valid, however, California courts require that the attorney for the represented party, “at a minimum, must explain to the unrepresented party regarding a premarital agreement: (1) that the attorney’s responsibility is to pursue and protect only the interests of his or her client (i.e., the represented party to the agreement); (2) that spousal interests are probably not identical and are likely to conflict; (3) that the spouses’ interests will change over time and the attorney will not be concerned with providing for all the changed circumstances that could possibly impact the unrepresented spouse; and (4) that signing the premarital agreement will eliminate or modify his or her statutory rights” In re Marriage of Bonds (1999) 71 Cal.App.4th 290, 324.

3. One of the parties fraudulently concealed his or her assets from the other party.

In a premarital agreement, the parties are waiving their rights to property/money that they presumably would have been entitled to had there been no such agreement. Therefore, in order for the agreements to be valid, each party must make full disclosure of his or her assets to the other so that they both know what exactly is the consequence of their signing the agreement. A premarital agreement will very likely be declared void if the challenging party could prove that the other party failed to make full disclosures of his/her assets before the agreement was executed.

Several courts have enforced premarital agreements, however, where the failure to make full disclosure was not intentional and was result of unintentional mistake, or where the undisclosed matter was not material and would not have changed the decision of the now challenging spouse to enter into the premarital agreement.

4. The prenuptial agreement was poorly drafted.

As with any other contract, a prenuptial agreement is more likely to fail if it is poorly drafted – e.g., it contains numerous ambiguities, the agreement contains terms that conflict with each other, etc. Moreover, none of the 50 states recognize verbal prenuptial agreements.

5. The prenuptial agreement is one-sided.

Courts are reluctant to enforce prenuptial agreements that are patently one-sided and, therefore, unconscionable.  Unconscionability is a doctrine in contract law that refers to contract terms that are so unjust, or overwhelmingly one-sided in favor of the party who had the superior bargaining power at the time the parties entered into the contract, that they are contrary to good conscience. If the challenging spouse could prove that the terms of the premarital agreement and the circumstances surrounding the signing of the agreement meet that definition of unconscionability, the agreement very likely will be declared void and invalid.

6. The prenuptial agreement attempts to accomplish something that it cannot.

Finally, a prenuptial agreement will likely fail if the parties attempt to use it for improper purposes.  For instance, a party to a prenuptial agreement cannot waive his or her right to receive child support from the other party in case of a divorce.  The reasoning behind this rule is that child support is for the benefit of the children and since they were not parties to the agreement, their rights could not have been waived through that agreement.

A couple wanting to add a unique term in a premarital agreement that they are not certain is permitted should add a “severability clause” in the agreement which provides that, if parts of the premarital agreement were later determined to be illegal or not enforceable, the remainder of the agreement would stand and be enforced against the parties thereto.

Conclusion

In order to “play it safe,” you and your soon-to-be significant other should retain separate counsel to help navigate you through the premarital agreement negotiating and drafting process.  Although I hope you will go on to live “happily ever after” and will never have to test the validity of your premarital agreement, in case things don’t work out (as is the case for about 50% of the marriages) and you find yourself in a contested divorce proceedings, the money you and your spouse spent on separate lawyers will be well worth it.

~Good luck and God bless!