While everyone wants a rock-solid prenup that protects them, sometimes prenups can go too far. At the end of the day, this strategy often backfires because courts routinely throw out prenups that are considered unfair. This is especially the case when prenups wade into the waters of unconscionability. So, what exactly is an unconscionable prenup, and how can you be sure that yours isn’t? Let’s dive in!
Keeping things fair
While stereotypically, the wealthier spouse is the one to insist on a prenup, prenups are meant to protect both parties. Fairness is a guiding principle of prenuptial agreements. When a court reviews a prenuptial agreement, there are several things they are looking out for in terms of the fairness of the agreement. Typically, a court wants to make sure that the couple disclosed their finances to each other. This is important because by waiving alimony, for example, you are foregoing a right bestowed upon you by marriage and in order to waive that right, you need to be fully informed as to what you are giving up. For example, perhaps your soon-to-be spouse is a multi-billionaire or alternatively, millions of dollars in debt. In both of those scenarios, that is information you need to know before you sign on the dotted line.
Judges will also be on the lookout for prenups that were signed very shortly before a wedding. This is often a sign that there was pressure to sign at the last minute or even that the agreement was entered into involuntarily. For example, if your fiancé hands you a prenup as you are boarding your flight for your Kravis-style Italian destination wedding, you might feel a little pressure to just sign the agreement, even if you aren’t in full agreement. Knowing that there are 500 guests waiting for you to walk down the aisle can definitely rev up your anxiety! That is why courts are very skeptical in these situations. The fairer way to do things is to allow your fiancé time to review the agreement and sign well in advance of the wedding. Remember prenups are not meant to be one-sided agreements. They are intended to protect BOTH spouses.
Also, keep in mind that prenups are a little different than your typical contract, just like your relationship with your fiancé is obviously a little different than say, the salesman that you entered into a contract with to purchase your car. As someone that you have an intimate relationship with and plan to spend your life with, honestly, disclosure, and overall fairness play a much bigger role.
With fairness in mind, if a prenup is determined to be unconscionable by a judge, the result will almost definitely be invalidation of the agreement. So, what exactly is an “unconscionable agreement”? Unconscionable agreements are considered beyond unfair. Big picture a prenup may be considered unconscionable based on purely one-sided provisions, unethical demands, or illegal mandates. Additionally, if the enforcement of a prenup will leave one of the spouses destitute and dependent on the state for support, a court will likely find that agreement to be unconscionable.
Failure to provide for a spouse financially
Let’s illustrate this with an example. Stacy and Jordan decided to get a prenup before they wed. Jordan is especially concerned with protecting his significant wealth. In fact, when disclosing his finances to Stacy, he kept a few of his larger assets concealed. In the agreement, Stacy waived her right to alimony and agreed that no property obtained during the marriage will be considered marital property. This means that should the couple divorce, she will only be entitled to the property and assets she solely acquires during the marriage. Additionally, Jordan gets to keep the family home in the event of divorce.
Stacy gives up her career after the couple marries so that she can stay home and care for the couple’s children. This allows Jordan to focus on growing his booming business. Years down the road, the couple calls it quits. Sadly, Stacy is forced to leave the family home with no income. Jordan doesn’t want her to have any part of his fortune.
Unsurprisingly, to everyone but Jordan that is, the judge determines that the agreement is unconscionable and throws it out completely because it wholly failed to provide for Stacy. Leaving her with nothing, despite her years of contribution to the family, was legally unconscionable. By completely invalidating the prenup, that means that the couple starts back at square one as far as the division of the assets. The judge can then fairly allocate assets, property, and potentially alimony to Stacy in order to ensure that the split is fair.
While prenups are generally financial in nature, parties sometimes seek to include additional non-financial terms often referred to as “lifestyle clauses”. For example, infidelity clauses are very popular in prenups. However, these non-financial terms can quickly go too far and when they do, the provision, or even the entire prenup can be invalidated. For example, one party may demand to include weight restrictions in the agreement such as “prohibiting” their spouse from going above a certain weight (yuck!). Other examples include contractually requiring one of the parties to perform all of the housework, and even requiring sexual acts. Agreements such as these are severely frowned upon and it’s easy to see why a court would want to strike these from a prenup or throw the prenup out altogether.
This hopefully goes without saying but a court will not enforce a prenup that requires one of the spouses to break the law. So, be sure to keep things legal in your prenup!
How to ensure that your prenup is conscionable
If a court finds that your prenup is unconscionable, the entire agreement will likely be thrown out and invalidated. Nobody wants that! Here are a few things to remember when drafting your agreement to ensure that fairness prevails:
- Negotiate and sign your prenup well in advance of the wedding
- Proceed with caution with lifestyle clauses
- Ensure that the prenup provides for both spouses (especially important if one spouse is a stay-at-home parent)
- Discuss debt and ensure that it is fairly allocated
- Do not include any illegal terms in your agreement
- Consider a sunset clause
Remember that what constitutes an “unconscionable agreement” can be very subjective. While there are extreme examples, like the Stacy and Jordan example above, what is unconscionable will be almost completely up to the judge assigned to your case. Therefore, it is important to err on the side of caution and keep things as fair as possible. This limits the chances of a judge completely throwing out your agreement. Additionally, it is also important to keep in mind that what is unconscionable may vary by state. Before drafting your prenup, be sure to check state laws.
Want to learn more about prenups as they vary by state? Visit HelloPrenup.com and make sure to check out our state specific guidelines.
All content provided on this blog is for informational purposes only. HelloPrenup, LLC (“HelloPrenup”) makes no representations as to the accuracy or completeness of any information on this site. HelloPrenup will not be liable for any errors or omissions in this information nor for the availability of this information. These terms and conditions of use are subject to change at any time and without notice. HelloPrenup provides a platform for contract related self-help. The information provided by HelloPrenup along with the content on our website related to legal matters (“Information”) is provided for your private use and does not constitute legal advice. We do not review any information you provide us for legal accuracy or sufficiency, draw legal conclusions, provide opinions about your selection of forms, or apply the law to the facts of your situation. If you need legal advice for a specific problem, you should consult with a licensed attorney. Neither HelloPrenup nor any information provided by Hello Prenup is a substitute for legal advice from a qualified attorney licensed to practice in an appropriate jurisdiction.