So you’re thinking about getting a prenup? That’s great news! But maybe you’ve heard some rumors and aren’t really sure if prenups are legally enforceable. You may be wondering: “Do prenups hold up in court?” because you once heard from a friend of a friend that their prenup was not enforced by a court. Well, we are here to tell you that prenuptial agreements can be legally enforced. We repeat: prenuptial agreements can be legally enforced! However, prenups are sometimes (in rare cases) unenforceable because they fail to meet certain state requirements. Let’s dive in to discuss more about how prenups are legally enforceable.
What is a prenup agreement?
A prenup is a legally binding contract between you and your boo (that is, your fiancé). It is effective upon marriage (no marriage = no prenup).
Prenups cover topics like property division, debt, and alimony in the event that you part ways. You can also include other topics such as inheritance, gifts, taxes, pets, confidentiality, death, insurance, and much more!
Think of a prenup like car insurance, but for marriage. You hope to never get into a car accident, but if it happens, you’re happy you got insurance. Same goes for a prenup!
Who gets prenups?
Anyone who is about to get married can get a prenup. Spoiler alert: prenups are not just for the wealthy; they’re for everyone. No, you don’t need millions upon millions to have a worthwhile prenup. A prenup can do many things; it can protect you from your partner’s debt, a single piece of real estate, your business, and even your inheritance (and much more)!
Here are just a few of the scenarios where people can benefit from a prenup:
- Existing asset protection: Someone who wants to protect the property that they bring into the marriage. For example, if you purchased a home prior to the marriage and want to ensure that stays yours, you can do so with a prenup. Another example would be if you have an investment account with a couple thousand in it, you can ensure that, plus any appreciation that occurs during the marriage, stays separate.
- Future asset protection: Someone who doesn’t have money yet but expects to accumulate some wealth in the future. For instance, say you are in med school when signing the prenup, but one day will become a surgeon making millions. You can ensure your future income or investments stay separate.
- Debt protection: Couples that don’t want to take on each other’s debt. And, yes, you could be responsible for your partner’s debt in a divorce, even if your name isn’t on it! In some states and some situations, you could end up paying off a portion of your ex-spouse’s student loans, even if you had absolutely nothing to do with it.
- Inheritance protection: Whether you know you’re getting an inheritance or you might get one, prenups can ensure that family money stays yours. And, no, inheritances and gifts are not always automatically considered separate property, despite what some people may tell you!
- Purchasing property together: Whether you already have joint property or plan on purchasing joint property together in the future, a prenup can help parse out how to split those properties up in the event of a split. For example, let’s say one person puts down 30% of the down payment and the other puts down 70%. How will you split up the home in the event of a divorce?
- Business interest protection: Planning to open a business one day? Or already have one? You can put your mind at ease with a prenup and ensure those business interests remain separate. Without a prenup, your future ex-spouse could be entitled to a portion of the value of your business. Yikes!
- Miscellaneous clauses: From protecting confidentiality to infidelity to protecting your pets, there are so many other provisions that are available! Keep in mind that some clauses may not be available in ALL states (ex, infidelity clauses are not enforceable in CA).
Takeaway: Anyone can get a prenup–they’re not just for the wealthy. In fact, you can have $0 in your bank account and still benefit from a prenup (yes, prenups protect assets that don’t exist yet).
Understanding how prenups are enforceable
The best way to understand how prenups are enforceable is to start by understanding the divorce process. You can either have an amicable divorce or a litigated divorce case. When a divorce is a litigated divorce, there’s a trial; it can be very dramatic and also expensive. Most cases do not get to that point.
Now, let’s imagine a divorce where there is a prenup. With a prenup, there are two ways to go:
- You and your ex-spouse can privately choose to follow the terms of the agreement by hiring attorneys and determining the terms of the divorce based on what is in the prenup agreement.
- Or, you can file in court and have a litigated case in order to come to a conclusion as to whether the prenup should be enforced.
How do I enforce a prenup?
If the sad day ever comes when you and your honey decide to call it quits, then you may have to pull out the prenup. If you created the prenup with HelloPrenup or a lawyer and followed all of the required steps, then you most likely have yourself an enforceable prenup.
In many situations, you may simply invoke the prenup by privately agreeing that the two of you will abide by the terms on your own accord.
The scenario that a court needs to step in and declare a prenup enforceable or not is when one party arguegs it is not enforceable or refuses to abide by the terms. If that is your case, then you may need a lawyer to help you make a claim that the prenup is enforceable (or vice versa). The court will then make a decision based on the current laws and their discretion.
When is a prenup unenforceable?
Unfortunately, we don’t have a crystal ball that can tell you exactly what a judge will say about the enforceability of your prenup at some point in the future.
However, one thing’s for certain: you need to follow all the requirements of your state for creating a valid prenup. Not following all the state requirements of a valid prenup will greatly increase your chances of a judge declaring your prenup unenforceable. Every state has its own rules, but there are some generally accepted requirements across most states:
- Must be in writing & signed by both parties
- Some states require notarization, although every state recommends this anyway
- There must be some level of financial disclosure
- The prenup must be voluntarily signed (no force, coercion, duress, etc.)
- The circumstances surrounding the creation of the prenup must not be unconscionable
- There also may not be unconscionable terms
- No unlawful terms (such as infidelity clauses in some states, child matters, etc.)
Do I need a lawyer to create a legally enforceable prenup?
The baseline answer to this question is: no, you don’t need a lawyer to create a legally enforceable prenup. This is true in every state. HOWEVER– there are some states that impose a lawyer requirement in CERTAIN situations.
For example, in California, if you alter spousal support in your prenup, independent legal counsel is required; otherwise, your prenup may not be enforceable. On the flip side, no modifying spousal support in CA = means you don’t need a lawyer.
Why do I always read online that you need a lawyer for a prenup, then? This is because if your prenup is ever challenged one day (i.e., your spouse argues it’s not valid), many states will look at the presence or absence of a lawyer in creating the prenup as one factor in determining whether it’s an enforceable agreement. However, this only gets considered if your prenup is challenged.
A real-life example of an unenforceable prenup
If you are worried about what gets a prenup thrown out, don’t. It takes a lot. Take this case below and see just how many factors had to occur in order for a court to declare a prenup unenforceable:
- Background: The day before the couple was set to get married in Vegas, the husband urged the wife to sign the prenup his attorney created. The wife was very hesitant, but the husband reassured her that his attorney had reviewed it for her. She eventually signed, and they carried on with their wedding.
- The Prenup: The prenup said neither party had a right to the other’s separate property, and both waived their right to alimony. The prenup had no real financial disclosure, only a sheet with a list of some of the husband’s assets, but no monetary value was claimed.
- The Divorce: The wife argued the prenup was unenforceable because she didn’t sign it voluntarily. She did not have an attorney representing her while she signed the prenup, nor did she have reasonable time to review the terms, as it was a day before the wedding. On top of it, she wasn’t aware of her husband’s finances, as he never included the value of his assets.
- The Court’s Ruling: The court agreed with the wife! They said this is not an enforceable prenup because she didn’t have a meaningful chance to review the document (it was given to her a day before the wedding), she didn’t have an attorney (one attorney cannot validly represent two people), and she wasn’t aware of his assets (he did not include monetary value next to his assets).
The takeaway: Pressuring a spouse to sign a prenup the day before the wedding without proper financial disclosure and under the misunderstanding that a lawyer reviewed it for one party is enough to get the prenup tossed out in Oregon. As you can see, the culmination of all these factors was the kicker, but without all of these circumstances, it may not have been the case!
The bottom line is that prenups are usually enforced
While it is possible to have a prenup thrown out, it’s not very common. Courts favor prenups and want to enforce your agreement (thanks to the freedom to privately contract, yay, America!). The best way to ensure your prenup holds up is to follow the requirements laid out by your state. This includes:
- Get it in Writing: It must be in writing, and both of you must sign the agreement. No verbal agreements, please!
- Disclose Your Finances: Being transparent with finances is legally required for fairness and validity. (Yes, you need to disclose your income, assets, and debt). If financial disclosure is not done properly, it is at risk of being thrown out. This is because both parties need to understand what they’re “getting into” (a.k.a., they need to know what rights they’re giving up by signing a prenup).
- Do It Voluntarily: No pressure or last-minute surprises. Signing any contract under duress or coercion is a fast-track way to get the agreement tossed. For example, handing a prenup to your fiancé seconds before walking down the aisle when there is a crowd of 200 people waiting and the bride is a pregnant immigrant who has no time to consider it or get a lawyer. This would potentially be considered signing a prenup under duress in certain states.
Remember: Prenups are about protecting both of you and building a strong foundation for your future together. If you care enough to get married, a prenup shows you care enough to plan responsibly, too.
Nicole Sheehey is the Head of Legal Content at HelloPrenup, and an Illinois licensed attorney. She has a wealth of knowledge and experience when it comes to prenuptial agreements. Nicole has Juris Doctor from John Marshall Law School. She has a deep understanding of the legal and financial implications of prenuptial agreements, and enjoys writing and collaborating with other attorneys on the nuances of the law. Nicole is passionate about helping couples locate the information they need when it comes to prenuptial agreements. You can reach Nicole here: Nicole@Helloprenup.com
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