By Hanan Zaki, J.D., LL.M. | Legally reviewed by Rhonda Earhart, Esq. | Last reviewed July 24, 2023
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A prenuptial agreement, or a “prenup," is a written agreement (contract) between future spouses before marriage.
In a legal document, future spouses agree on how to split finances (joint bank accounts, alimony, etc.) and marital property in the event of a divorce or death. This includes protecting a family business or securing your personal assets (individual bank accounts, property, etc.). You can find more examples of common reasons to get a prenup. There is also more information if you are considering whether or not a prenup is right for you.
Prenuptial agreements can be a great tool for couples before marriage. However, prenups must be drafted correctly to be legally enforceable. If your prenup is not drafted correctly, you cannot use it, and your spouse may be automatically entitled to half of all your finances and property.
This article discusses why a prenup may be invalid.
Although legal requirements for prenups vary by state, there are common reasons why a prenuptial agreement may be invalid (unenforceable). Here are the top 10 reasons:
Prenuptial agreements are legal contracts, and they must be in writing to be enforceable. This means that you cannot have an oral agreement. If a prenup is not in writing, the prenup will be invalid.
A prenup is a premarital agreement. This means that a prenup is an agreement signed before marriage. Both future spouses must sign a prenup in a timely manner (before the wedding) in order for the agreement to be considered valid.
Note: states have different time requirements for when you can sign the prenup. For example, California requires a seven-day waiting period from when a future spouse receives the prenup until the time the spouse signs it.
This means that (in California) if you get the prenup two days before the wedding and you sign it the same day, the prenup may not be enforceable because you did not wait seven days.
A premarital agreement may not be valid if one of the future spouses was pressured, threatened, or forced by the other future spouse to sign the agreement. This includes a future spouse's lawyer, family, or friend who pressures someone to sign.
For example, suppose one party threatens to cancel the wedding or take away financial rights or real estate if the other partner does not sign.
This type of behavior does not have to be violent. If a partner feels they have no choice but to sign the agreement, that could be enough to make the premarital agreement invalid.
If your future spouse hands you a bunch of papers (which include a premarital agreement) and asks you to sign them quickly, the premarital agreement may not be enforceable if you sign it without reading it.
A future spouse entering into a premarital agreement must be given enough time to review it and think it over before signing it.
If a partner hands the contract and a pen to their partner just before the wedding ceremony, the agreement is probably invalid.
Although a premarital agreement can determine finances, it cannot list child support, child custody, or visitation rights that either spouse would have if the marriage ends in divorce.
Any other provisions of the agreement that violate the law, would also be invalid. It is possible that the court could strike only the illegal clauses but enforce the remainder of the agreement.
A premarital agreement is valid only if it is entered into after full disclosure of income, assets, and liabilities by both parties.
If one partner provides the other with information that is not true or does not fully disclose the information, the agreement is invalid.
Failing to provide important information is the same as providing false information. This will make a premarital agreement unenforceable.
Because both partners' separate interests are at stake, both parties to a premarital contract should (and in some states, must) be represented by their own attorneys, or the agreement will not be enforced.
Unconscionable is a legal term that means extremely unfair or unreasonable to one of the parties or unacceptably offensive to public policy. If something in the prenup is extremely unfair, even if you sign it, the prenup will be invalid.
For example, the clause may be invalid if you agree to give up your right to:
In law, one of the benefits of marriage is that you are entitled to all the above, even if your partner did not mention you in their will. This is also true if your partner makes much more than you but signs an agreement to leave you with nothing.
If you agree that your spouse gets all the property and you get all the bills, that may be invalid as it seems extremely unfair.
If the agreement is so grossly unfair that one party would face severe financial hardship while the other will not, the court is not likely to enforce it. Essentially, "unconscionable" contracts are generally found invalid. Premarital agreements are no exception.
A premarital agreement can help you feel secure that your assets will be protected in the event that your marriage ends in a death or divorce. However, it may be tricky to write a prenup without legal counsel. If you write a prenup incorrectly, it may not be valid. This means you cannot use it, and your spouse may automatically be entitled to half of all your finances and property.
In order to make sure you have a valid prenup, you will need to seek legal advice from an attorney. Consult a local family law attorney to make sure your premarital agreement is valid and in compliance with your state laws.
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