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 unenforceable because they fail to meet certain state requirements.
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 contract). Prenups cover topics like property division and alimony in the event that you two part ways. Most people enter a prenup thinking and hoping they’ll never have to use it, but sometimes that’s not the case. Think of it like car insurance. You hope to never get into a car accident, but if it happens, you’re happy it’s there.
Who gets prenups?
Anyone that is about to get married can get a prenup. In fact, prenups are not just for the wealthy; they’re for everyone. 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, it can protect a single piece of real estate, it can protect your business, it can even protect inheritances (and much, much more)!
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: One, 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, two, 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. As we explained in the previous section, you may not ever need to invoke the court to enforce the prenup, as you may privately agree that the two of you will abide by the prenuptial agreement 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 claims 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. However, one thing’s for certain: you should 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. Keep in mind every state has its own requirements, as prenup law is governed by state family law. Luckily, there are some generally accepted requirements across most states:
- The prenup must be in writing
- The prenup must be signed by both parties
- The prenup must be notarized (this isn’t true for all states, but it’s always better to be safe than sorry)
- There must be some level of financial disclosure (some states allow waiver of financial disclosure, with stipulations)
- The prenup must be signed willingly (no fraud, duress, coercion, undue influence, etc.)
- The prenup must not include unconscionable terms
- The prenup must not include unlawful terms
Do I need a lawyer to create a legally enforceable prenup?
This question depends on your state law. Most states do not require a lawyer to create a valid and enforceable prenup. However, there are some states that do require it. For example, in California, if you alter spousal support in your prenup, independent legal counsel is required; otherwise, your prenup may not be enforceable. Some states simply look at the fact that you hired a lawyer as support towards showing that your prenup is valid. That is, if the validity and enforceability are even questioned.
Real life example of an unenforceable prenup
In Oregon, a court declared a prenup unenforceable because the wife did not sign the contract voluntarily. The facts of the case were as follows. 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 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 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.
Fast forward to their divorce, and the wife argued the prenup was unenforceable because she didn’t sign it voluntarily. She did not have an attorney, nor did she have reasonable time to review the terms, as it was a day before the wedding. On top of all that, she wasn’t aware of her husband’s finances, as he never included the value of his assets. 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).
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: [email protected]