Can a Premarital Agreement Ever Be Invalid?

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CAN A PREMARITAL AGREEMENT EVER BE INVALID?
A Guide to Problems with Premarital Agreements
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A Premarital Agreement Is A Contract
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Premarital agreements are contracts entered into
by a husband and a wife in consideration of
marriage
4
The premarital agreement must be written, as oral
agreements are not going to be enforced by a
court
5
You must follow all rules for drafting a
premarital agreement and contract in your state
for the premarital agreement to be considered
valid
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If there is a problem in the creation or the
terms of the premarital agreement, it can be
declared invalid
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Premarital Agreements Can Be Invalidated in Whole
or in Part
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• If a couple is divorcing and one spouse believes
  the premarital agreement should not be enforced,
  he or she can raise arguments to the court
  explaining why the premarital agreement should be
  invalidated

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The court can invalidate or refuse to enforce
certain provisions of the contract, such as when
there is a problem with just one clause or part
10
The court can also invalidate the entire
agreement if there is a problem in the creation
of the contract
11
A Premarital Agreement Can be Invalidated Due to
Fraud
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Both parties must enter into the premarital
agreement knowing the material facts
13
If one spouse hid information about assets,
income or other relevant issues, then the
premarital agreement can be invalidated as a
result of fraud
14
If one spouse lied or was dishonest, the
agreement can also be invalidated due to the
fraud
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A Premarital Agreement Can Be Invalidated if it
Was Signed Under Duress
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Each spouse must voluntarily enter into the
premarital agreement of his or her own free will
17
If one spouse felt forced or coerced into signing
the agreement, the agreement can be invalidated
18
Presenting the agreement with limited time to
review, or with threats that the imminent
marriage will be called off if not signed, can
all be considered examples of duress
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A Premarital Agreement Can Be Invalidated if the
Terms are Unconscionable
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If the terms of the premarital agreement are
grossly one-sided and unfair, the premarital
agreement can be invalidated under certain
circumstances
21
A premarital agreement is most likely to be
invalidated because it is unconscionable if one
party had all of the power in the drafting and
signing of the agreement and the terms are
skewed heavily in that persons favor
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Both parties should be represented by their own
attorneys in the writing of the agreement to
ensure their rights are protected and the terms
are fair
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Provisions (or the whole agreement) Can Be
Invalidated If The Provisions Are Against Public
Policy
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A court will not enforce a contract that goes
against public policy
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For example, provisions of a premarital agreement
in which one spouse waives child support are void
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These provisions will not be enforced because
children deserve to be supported by both of their
parents. One parent cannot waive this right on
behalf of a child
27
Provisions Can Be Invalidated if They Are
Ridiculous and/or Difficult For the Court to
Enforce
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The court will not enforce certain provisions of
premarital agreements if doing so would be
difficult or ridiculous
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For example, if the agreement contains clauses
related to how often your in-laws are allowed to
visit or as to how often you must engage in
marital relations, the court is not likely to
enforce these contractual provisions
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Agreements Can Be Invalidated if They Are Poorly
Drafted
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If the contract does not comply with all
requirements for a premarital agreement in your
state, the court will not enforce it
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If the contract provisions are vague or poorly
written and the court cannot interpret the
contract accurately, the court may not enforce
the unclear terms
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An Attorney Can Help
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An attorney should be consulted when drafting a
premarital agreement to ensure it is enforceable
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If there is a dispute over whether an agreement
is valid and enforceable during the divorce
process, both parties should be represented by a
lawyer who can help them to make arguments for
their position to the court
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