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Could your prenup be invalid?

A prenuptial agreement is a legal document that people sign before they get married. It addresses the possibility of divorce and usually includes provisions concerning asset division in the event of divorce. For instance, someone may put in a prenup that they get to keep their entire inheritance or all of the value in their business, even though these things may otherwise qualify as marital assets (if comingled) in some cases.

If you have a prenup and you are going to get divorced, you certainly may be counting on the terms in that prenup to define how the divorce will take place. You believe that many decisions have already been made, and you are counting on a specific outcome. But there is a chance that the prenup could be invalid, and it’s very important to know if this is true before you get to court.

It wasn’t signed of one spouse’s free will

Both people who sign a prenup have to make this decision of their own free will. They cannot be coerced or pressured. They cannot sign it under duress. It is not valid if they didn’t have the mental capacity to sign, such as if they were using drugs or alcohol. If someone can show that they may have signed the prenup but they didn’t want to, they were tricked into doing so or something of that nature, then it may not stand.

It is unconscionable

Another thing to be considered is whether or not the prenup is unconscionable. This simply means that it is drafted in ways that are so excessively unfair in favor of one person that the court doesn’t believe it should stand. For instance, someone may write a prenup stating that they get to retain all of the assets and that their spouse gets nothing, trying to deter a divorce. But this is so unfair that it likely wouldn’t be used if a divorce does occur.

Assets were not disclosed

Finally, a couple that signs a prenup needs to disclose the assets they own before signing. If your spouse told you that they didn’t have any money and so you might as well sign a prenup because you weren’t losing anything, and then you later found out that they had secret bank accounts with millions of dollars in them, the prenup be may be thrown out because you didn’t know what you were signing away when you signed that document.

As you can see, the financial side of divorce gets complicated. Be sure you know exactly what steps to take before you commit to a particular approach to your divorce, valid prenup or not.