3 Reasons That Can Get Your Prenup Thrown Out
How can a prenup be thrown out?
So first, you should know that prenups are by and large enforceable. They wouldn’t be outstanding contracts if you could decide you didn’t like it and have it thrown out, right? It’s kind of like — If you sign a purchase agreement to buy a house, you have to pay the mortgage. You can’t just ask for it to be thrown out unless there was something seriously wrong with it in the first place.
The same thing for a prenup — it’s a contract like any other contract, but if there are things that are deficient with the agreement, then yes, a judge might throw it out.
The number one reason a prenup is not going to be enforced is when people try to do them on their own. Each state has different rules around what a prenup requires to be legally enforceable, and they’re not always intuitive things that a layperson is going to think of off of the top of their head. Some states require very specific waivers, some states require witnesses in addition to a notary public to sign the document. If you haven’t followed the state-required rules for enforceable prenups then you don’t have an enforceable contract. So that’s part one — don’t write your own prenup — get a lawyer that knows what they’re doing.
Beyond that, there are generally three things that can get your prenup thrown out. Again, these can vary slightly state by state, but these are the general rules:
- Non-disclosure of assets can jeopardize enforceability.
There has to be a disclosure of assets and debts, and often income as well. Why? Because you’re trading the state’s default prenup for your own custom prenup. You’re trading one thing for another, and to make that trade knowingly and intelligently, you’ve got to know what you’re giving up. That means knowing what assets and debts are on the table. Many states don’t actually require that you write down your assets and debts and show them to each other, but if you don’t do that, how do you prove that you disclosed your finances to your spouse if they try to get the prenup thrown out later? So a good attorney is going to require you to not only write down a schedule of your assets and debts, but they’re going to attach those schedules to the prenup itself so there’s no question that those disclosure have happened. If you hid assets or debts when you signed your prenup, then you may have trouble enforcing it later. You won’t be able to have the prenup thrown out if you’re the spouse at fault, but your spouse may be able to have it thrown out. So non-disclosure of assets is one way that a prenup can be thrown out.
- Prenups are not signed voluntarily by the spouse.
The second way a prenup gets thrown out is if it wasn’t signed voluntarily. And this goes for pretty much every contract, really. If you hold a gun to someone’s head and force them to sign a contract, a court isn’t going to uphold that contract. You probably don’t need a lawyer to tell you that. But in the context of a prenup, voluntary may have a different meaning. Most states are going to require that you have had the opportunity to have met with a lawyer and got advice before signing the agreement for it to be enforceable. In some states that just means you had a day or two to meet with a lawyer before your wedding date. In other states, they may have a specific amount of time like a week or 30 days prior to the marriage that you have to be given prior to the date of the marriage. In some states that actually require that both spouses have attorneys, full stop. If you’ve watched some of my other videos, you may already know how I feel about this — don’t ever spring a prenup on your fiancé last minute before the wedding. It’s a horrible way to start your marriage, it destroys trust, it’s not fair — AND it could impact the enforceability of your agreement. Don’t be that person. That said, someone saying I’m not getting married unless you sign this prenup doesn’t count as forcing someone to sign a prenup. If someone says I’m not getting married unless you sign this, and you don’t want to sign it, then you shouldn’t sign it.
- The prenup is found to be unconscionable.
The last way a prenup can be thrown out is if it’s found to be unconscionable. What does unconscionable mean? In layperson speak, it means that it’s so fundamentally unfair that a court can refuse to enforce it. Now I should point out that there is a huge difference between “unfair” and “unconscionable.” Just because one person is left a multimillionaire and the other spouse isn’t doesn’t mean that the prenup is unconscionable. It’s gotta go a huge step beyond just unfair or unequal division of assets. If one person is left a multi-millionaire and the other spouse is left on public assistance, then yes, that might be unconscionable but it’s really going to come down to the opinion of the judge. But I will warn you that I’ve seen many many prenups that we would all view as unfair be upheld. The court isn’t going to throw something out just because you agreed to a bad deal. It’s gotta be far beyond unfair.
So, if the agreement is prepared correctly, it’s going to be rare that a judge is going to throw it out — it’s like any other contract. If you want to know if the prenup you signed is enforceable, come visit us a prenups.com and set up a consultation.
