An unconscionable prenup may be legally unenforceable

When a marriage ends, a prenuptial agreement, or “prenup,” often guides the division of assets. This contract states how to divide assets and handle various post-divorce matters. However, under certain circumstances, a court may deem a prenup unenforceable.

So, before crafting a prenuptial agreement, it’s vital to understand the factors a court considers when determining its enforceability.

What makes a prenup unenforceable?

A prenuptial agreement can become “unconscionable” and thus unenforceable if it disproportionately favors one spouse. Here are some factors that might deem a prenup unconscionable:

1. Unfair terms: If the agreement unfairly favors one spouse, leaving them with most assets or causing significant hardship on the other, it may be unconscionable.
2. Incomplete disclosure: Full disclosure of assets and liabilities is crucial when creating a prenup. Without it, the agreement could be unconscionable.
3. No independent legal advice: A prenup may be unconscionable if a spouse didn’t have independent legal advice before signing. This can result in misunderstanding the terms and implications.
4. Duress or undue influence: If a spouse feels coerced or pressured into signing, the agreement could be unconscionable. Both parties must willingly consent to the prenup.
5. Deceit or fraud: Misleading information about the terms or a spouse’s circumstances can render an agreement unconscionable.

For instance, if a spouse conceals assets when signing the prenuptial agreement, the court may nullify the prenup. However, it’s not as simple as complaining. The court won’t invalidate the agreement based solely on an accusation of deceit or fraud, for example. In such a situation, the burden falls on the challenging spouse. It becomes their responsibility to provide proof of such unconscionability.

Making the terms valid

Though drafting a prenup does not always require legal representation, looking to someone for guidance can help. These documents come with substantial financial and legal implications. With an attorney’s help, couples can draft them correctly and ensure the prenup is both fair and legally sound.