{"id":351924,"date":"2016-04-04T11:02:42","date_gmt":"2016-04-04T16:02:42","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-law\/family\/marriage\/top-10-reasons-a-premarital-agreement-may-be-invalid.html"},"modified":"2023-07-24T09:45:09","modified_gmt":"2023-07-24T14:45:09","slug":"top-10-reasons-a-premarital-agreement-may-be-invalid","status":"publish","type":"page","link":"https:\/\/www.findlaw.com\/family\/marriage\/top-10-reasons-a-premarital-agreement-may-be-invalid.html","title":{"rendered":"Is Your Prenuptial Agreement Invalid?"},"content":{"rendered":"\n
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Is Your Prenuptial Agreement Invalid?<\/h1>\n
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\n By Hanan Zaki, J.D., LL.M.<\/a> | Legally reviewed by Rhonda Earhart, Esq.<\/a>\n | Last reviewed\n
\n \n <\/i>\n Legally Reviewed\n <\/summary>\n\n
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This article has been written and reviewed for legal accuracy, clarity, and style by FindLaw\u2019s team of legal writers and attorneys<\/a> and in accordance with our editorial standards<\/a>.<\/em><\/p>\n\n <\/div>\n <\/details>\n\n

\n \n <\/i>\n Fact-Checked\n <\/summary>\n\n
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The last updated date refers to the last time this article was reviewed by FindLaw or one of our contributing authors<\/a>. We make every effort to keep our articles updated. For information regarding a specific legal issue affecting you, please contact an attorney in your area<\/a>.<\/em><\/p>\n\n <\/div>\n <\/details>\n<\/section>\n

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If your prenup is not drafted correctly, you cannot use it. Your spouse may <\/i>be automatically entitled to half of all your finances and property.<\/p>\n\n <\/div>\n\n

A prenuptial agreement, or a \u201cprenup<\/a>," is a written agreement (contract) between future spouses before marriage. In this legal document, future spouses agree on how to split finances (joint bank accounts, alimony, etc.) and marital property in the event of a divorce<\/a> or death. This includes protecting a family business or securing your personal assets (individual bank accounts, property, etc.).<\/p>\r\n

Prenuptial agreements<\/a> can be a great tool for couples before marriage. You can find more examples of common reasons to get a prenup<\/a>. There is also more information if you are considering whether or not a prenup is right for you<\/a>.<\/p>\r\n

However, prenups must be drafted correctly to be legally enforceable. In a divorce, a prenup\u2019s enforceability determines whether it will influence the outcome. This article discusses why a prenup may be invalid.<\/p>\r\n

Top 10 Reasons Why a Prenuptial Agreement Might Be Invalid<\/h2>\r\n

Although legal requirements for prenups vary by state, there are common circumstances that make a prenup invalid (unenforceable). Here are the top 10 reasons:<\/p>\r\n

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  1. No written agreement<\/li>\r\n
  2. Not signed on time<\/li>\r\n
  3. Pressured, threatened, or forced to sign<\/li>\r\n
  4. Did not read the prenup<\/li>\r\n
  5. No time for consideration<\/li>\r\n
  6. Invalid provisions<\/li>\r\n
  7. False information<\/li>\r\n
  8. Incomplete information<\/li>\r\n
  9. No independent counsel<\/li>\r\n
  10. Unconscionability<\/li>\r\n<\/ol>\r\n

    1. No Written Agreement<\/h3>\r\n

    Prenuptial agreements are legal contracts, and they must be in writing<\/a> to be enforceable. This means that you cannot have an oral agreement. If a prenup is not in writing, the prenup will be invalid.<\/p>\r\n

    2. Not Signed on Time<\/h3>\r\n

    A prenup is a premarital agreement<\/a>. This means that a prenup is an agreement signed before<\/i> marriage. Both future spouses must sign a prenup in a timely manner (before the wedding) in order for the agreement to be considered valid.<\/p>\r\n

    Note: states have different time requirements for when you can sign the prenup. For example, California requires a seven-day waiting period <\/a>from when a future spouse receives the prenup until the time the spouse signs it.<\/p>\r\n

    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.<\/p>\r\n

    3. Pressured, Threatened, or Forced to Sign<\/h3>\r\n

    A premarital agreement may not be valid if one of the future spouses was pressured, threatened, or forced<\/a> by the other future spouse to sign the agreement. This includes undue influence from a future spouse’s lawyer, family, or friend who pressures someone to sign. It may also be invalid if the partner lacked the mental capacity to understand the terms of the agreement.<\/p>\r\n

    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. 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.<\/p>\r\n

    A valid will requires both parties to sign by their own free will.<\/p>\r\n

    4. Did Not Read the Prenup<\/h3>\r\n

    If your future spouse hands you a bunch of papers (which include a premarital agreement) and asks you to sign them quickly, the prenup may not be enforceable<\/a> if you sign it without reading the entire agreement.<\/p>\r\n

    5. No Time for Consideration<\/h3>\r\n

    A future spouse entering into a premarital agreement must be given enough time to review it and think it over before signing it.<\/p>\r\n

    If a partner hands the contract and a pen to their partner just before the wedding ceremony, the agreement is probably invalid.<\/p>\r\n

    6. Invalid Provisions<\/h3>\r\n

    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.<\/p>\r\n

    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<\/a> but enforce the remainder of the agreement.<\/p>\r\n

    7. False Information<\/h3>\r\n

    A premarital agreement is valid only if it is entered into after full disclosure<\/a> of income, assets, and liabilities by both parties.<\/p>\r\n

    If one partner provides the other with information that is not true or does not fully disclose the information, the agreement is invalid.<\/p>\r\n

    8. Incomplete Information<\/h3>\r\n

    Failing to provide important information is the same as providing false information. This will make a premarital agreement unenforceable. Creating a valid prenup requires carefully disclosing all relevant financial matters.<\/p>\r\n

    9. No Independent Counsel<\/h3>\r\n

    Because both partners’ separate interests are at stake, both parties to a premarital contract should <\/i>(and in some states, must<\/i>) be represented by their own attorneys<\/a>, or the agreement will not be enforced.<\/p>\r\n

    10. Unconscionability<\/h3>\r\n

    Unconscionable<\/a> 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.<\/p>\r\n

    For example, the clause may<\/i> be invalid if you agree to give up your right to:<\/p>\r\n