Puja Sachdev | April 1, 2022 | Prenuptial Agreements
A prenuptial agreement is a contract that a couple agrees to before getting married. The prenup is established to set out rules for a couple to follow if they ever get divorced. Typically, these agreements will cover property division and other aspects of dividing the couple’s finances or assets and liabilities if their marriage ends in divorce.
Prenups are generally enforceable unless they contain terms that are unconscionable or against public policy. Keep reading to learn more.
When Is a Prenuptial Agreement Against Public Policy?
A prenuptial agreement typically cannot be violated without potential adverse consequences unless the parties have agreed in writing to deviate from the agreement. However, if the prenup includes portions that violate public policy or are unlawful, those terms cannot be enforced. Therefore, the unlawful portions can be violated or essentially ignored.
If you are considering disregarding a provision in a prenuptial agreement, you should speak to an experienced family law attorney beforehand. They will advise you regarding your legal rights and the potential consequences of any violation.
Some examples of provisions that are against public policy and cannot be included in a prenuptial agreement include:
- A requirement that a future child be held to a particular religious upbringing
- Penalizing a spouse for not abiding by moral standards of conduct
- A provision stating that a spouse will not pay child support
It is best to speak with an experienced family law attorney to determine your rights under a prenuptial agreement and whether it violates public policy.
Can a Prenuptial Agreement Be Invalidated?
Generally speaking, prenuptial agreements are difficult to change or invalidate. However, there are times when the terms of a prenup may be proven to be unenforceable because they are unlawful or unfair.
Having an experienced family attorney assist with drafting the agreement will help avoid those pitfalls. In general, if the terms of the agreement are unreasonable to the extent that they are unconscionable, that might be a basis to invalidate the agreement. For example, if it is clear that the prenup unfairly favors one spouse over another or it excessively penalizes one spouse, it may be invalidated.
Fraud is always a basis to seek invalidation of a contract. However, the fraud must be proven. If one spouse did not fully disclose the extent of their assets or debts prior to signing the agreement, the prenup might not be enforceable. If a party was coerced into signing the prenup, that could also be grounds for invalidation.
Do I Need An Attorney to Sign or Enforce a Prenup?
Each party is entitled to have independent legal representation before or at the signing of any prenuptial agreement. The parties should have the opportunity to review the agreement with their own attorney. They shouldn’t use the same attorney, because the attorney cannot ethically advise each party individually about their respective rights and the pros and cons of signing the document. It is important to review the agreement in advance with an attorney that has no attorney-client relationship with your potential spouse so that you can receive the proper legal advice for your situation.
If you did not have an attorney at the time of signing, or the opportunity was not given for you to seek independent legal counsel prior to signing, that might be a basis to invalidate the prenuptial agreement. If you feel the prenuptial agreement you entered into was handled in violation of your legal rights, reach out to a family law attorney as soon as possible to advise you regarding your options.
On the other hand, if you have a valid prenuptial agreement and are facing a pending divorce, and you believe your spouse has or will violate the terms of your prenup, it is critical to hire an aggressive family law attorney. An attorney will assist you in enforcing the prenuptial agreement so that your wishes and the original terms of the agreement will be honored.
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