Reasons Why a Prenup May Be Invalidated

couple signing prenup

If you paid attention to the news back in 2013, you may have read about how a Brooklyn court threw out a couple’s prenuptial agreement signed by a Long Island woman in 1998 before marrying a millionaire. This court action set a precedent and divorce attorneys across the country took notice. Have more prenups been tossed out of court since?

While we can’t say if there has been an uptick in prenups being invalidated across the nation, we can say that people’s view of prenups has changed significantly over the years. What used to be considered insulting, today, prenups are almost as socially acceptable as divorce, especially among high-net-worth couples.

The Advantages of a Prenup

Why are prenups so powerful? They allow couples to control how their assets are divided upon divorce and they allow spouses to deviate from Nevada’s 50/50 community property laws. In other words, prenups can determine what property is marital or community property, what property remains sole property (which is not subject to division in a divorce), and what provisions will be made in the event of a breakup down the road.

Other reasons that you should consider to get a prenup include:

  • Finances - they allow for a deep examination of each person's accounts, debts, and assets. They help open discussions about the foundations of the marriage.
  • Large Assets - this ties into finances as well, but if one spouse makes a considerable amount more than the other, a prenup can identify what percentage each spouse would get upon a divorce.
  • Business - if you own a business, or are about to own one, divorce can become trickier if the division of property is not outlined properly.
  • Family pets - it is not uncommon for couples to ask "who gets the dog in a divorce?". If this has not been spelled out in the prenup, a court would rule in favor of the spouse that had purchased the dog originally. 

How a Prenup Can Become Invalidated

Traditionally, prenups are drawn up to protect the wealthier spouse’s assets; the idea is to protect him or her from losing a greater portion of their assets if their marriage ends in divorce. Until recently, it was very difficult to invalidate a prenup, however, there are certain situations where a prenup isn’t as ironclad as it appears. Here is the type of conditions that could void a prenup:

  1. The prenup is fraudulent because a spouse undervalued their assets or failed to disclose all of their assets. If you can prove that your husband or wife failed to disclose all of their assets when the prenup was drafted, you may convince the court to throw out the prenup when you get a divorce.
  2. The prenup was signed under duress, you lacked mental capacity at the time of signing, or you were forced to sign it.
  3. The prenup isn’t airtight because it wasn’t filed properly.
  4. When you signed the prenup, you did not have proper legal representation.
  5. The prenup is too lopsided or your spouse included ridiculous conditions.
  6. The prenup was oral and you don’t have a written agreement.
  7. You were forced to sign the prenup the day before the wedding.
  8. The prenup is so unfair, you’re left penniless.

Keep the above in mind, not only if you’re headed toward divorce, but if you’re thinking about signing a prenup. Whether you’re the wealthier or less wealthy party, it’s critically important that you speak with an experienced divorce and family law attorney who has the expertise to navigate you through this delicate issue and help you plan for a secure financial future. To get started, contact Ford & Friedman today.

Next: Does the Richer Parent Win Custody?

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