If you follow celebrity news, you may have seen stories about prenuptial agreements being challenged in court. One of the most recent examples was the prenup in singer Kelly Clarkson’s divorce. The judge in the case ruled that the agreement is valid.
You may be wondering: Why would an agreement be challenged in the first place? These are legal contracts, presumably written by attorneys, and signed by both parties. Aren’t they iron-clad?
In many cases, the answer is yes. However, there are numerous reasons a prenup may be struck down. Some of the most common are discussed below.
Problems with timing, consideration and legal counsel
How and when a prenuptial agreement is presented are important factors in their perceived validity if challenged later on. If one party surprises the other with a prenuptial agreement just days before the wedding, for instance, the decision to sign could be seen as coercion, because failing to sign would mean calling off the wedding at the last minute. There may not be enough time to carefully consider the contract and discuss it with an attorney.
In order to avoid questions of validity later on, the partner presenting the prenuptial agreement needs to:
- Introduce the idea of the agreement and the agreement itself well before the wedding (preferably before invitations have been sent out)
- Give the other person adequate time to read through, discuss and think about what they would be agreeing to
- Have the other person consult with an independent attorney who has no connection to the partner who presented the prenup (to avoid conflicts of interest)
If you are considering a prenuptial agreement, be sure to discuss timing and consideration with your attorney to prevent these types of problems.
The agreement has invalid provisions or is unconscionable
Prenuptial agreements are highly customizable, but not just any provision can be included. Generally, these agreements must focus on financial matters impacting the couple, and even those matters have limitations. In most cases, prenuptial agreements cannot contain:
- Any decisions about child support or child custody (these must be decided by a court at the time of divorce)
- One spouse’s agreement to waive their right to receive spousal support
- Any provisions asking or requiring either party to do something illegal
A prenuptial agreement may also be struck down by a judge if it is considered “unconscionable.” These agreements must be reasonable and fair to both parties. If a prenuptial agreement was written in a way that essentially ensured one spouse would be destitute following divorce, it would almost certainly be deemed invalid.
Consult an attorney before writing or signing a prenuptial agreement
A contract (of any type) is only useful if it can be enforced. Therefore, if you are taking the time to write or consider a prenuptial agreement, it is worth investing in the help and counsel of a skilled family law attorney.