A prenuptial agreement is something that family law attorneys regularly encourage people to invest in before tying the knot. It is indeed an investment. The reason is that when properly constructed, a prenup will protect your assets in the event of a divorce. However, not all prenuptial agreements are created equal, and some marriages end with people calling into question everything they ever agreed on with their spouse – including the prenup. But can you challenge a prenup during a divorce? Good question. And the answer is yes, of course you can!
There are a number of reason for why a prenuptial agreement may be invalidated when a couple gets divorced. In that light, we would like to take a closer look at what might cause your prenuptial agreement to be challenged or invalidated. This will help you to better prepare when deciding what course of action to take with your prenup, in the event of a divorce.
Under the law, it is critical those both parties fully disclose all of their assets and debts before writing up a prenuptial agreement. If one party doesn’t fully disclose all of their assets, including money, properties, investments and accounts, the court may choose to invalidate the agreement.
There are very few instances where the courts will accept an oral prenuptial agreement. Under most circumstances, a prenup needs to be written and signed by both parties in order to be enforceable. Ideally, there should be four signed copies – one copy for each partner, and the other copy for each partner’s independent attorney.
It is against the law for a prenuptial agreement to be signed under duress. In other words, it is not acceptable for one partner to pressure the other into signing a prenup they are not comfortable with. Also, no one may sign a prenup if they do not have the mental capacity to make legal decisions. This means a prenup signed by someone who was drunk or under the influence of drugs could be invalidated and thrown out.
Independent Legal Representation:
In order for a prenup to be valid, both parties should have their own legal representation. This means that both people who are planning to get married ought to have independent and separate attorneys representing them. Each attorney is responsible for making sure their client fully understands the prenuptial agreement, and that they are signing voluntarily. One attorney cannot represent both parties at the same time.
It is entirely acceptable for a prenup to be biased in favor of one person. (This is how a wealthy person protects their assets when marrying someone who has far fewer assets.) But the court will sometimes not accept a prenup that is patently unfair. A prenup that is completely one sided is considered to be ‘unconscionable’, which means “shocking to the conscience.” An agreement that allows one partner to keep everything after a divorce, while the other gets nothing will likely be deemed unconscionable.
Join us next time when we will be looking at the other five items on this list of things that could render your prenuptial agreement invalid by the court. Till then, if you have any questions about your prenup, or would like help to draft a prenuptial agreement, please come and talk to us. Our family law attorneys have decades of experience helping mid-Michigan couples plan for their futures. We can be reached at 866 766 5245.