Picture this: you’re caught up in the whirlwind of wedding planning, envisioning a lifetime of happiness with your partner. Then, a prenuptial agreement lands on the table, and the terms are shockingly one-sided, leaving you with no financial security if the marriage ends. Suddenly, the joy and excitement are replaced by anxiety and doubt.
If you’re wondering what is considered an “unfair” prenup–look no further. In this article, we’ll discuss various real-life cases where judges threw out a prenup for being unfair. Keep in mind that every state has its own rules and standards for determining what is considered unfair in a prenuptial agreement. So, what may be considered unfair in California may not be the case in Kansas. Now, without further ado, here are several real examples of unfair prenups that were thrown out by a court.
A quick legal lesson on what “unfair” means from a legal perspective
While courts rarely use the term “unfair” directly, they employ the legal concept of “unconscionability” to assess the fairness of a prenuptial agreement. Typically, unconscionability comes in two main forms: procedural and substantive. Procedural unconscionability examines the circumstances surrounding the agreement’s creation, such as whether any party was coerced or lacked the opportunity to get legal representation. Substantive unconscionability focuses on the fairness of the agreement’s terms themselves, considering whether they are overly one-sided or unjust. Now, with that in mind, let’s dive into some real-life examples.
Example of an unfair prenup in Alaska
In Andrew B. v. Abbie B., the Supreme Court of Alaska found a prenuptial agreement unconscionable due to both procedural and substantive issues. The agreement was poorly written, with inaccurate statements and cross-references to omitted portions, making it difficult to discern the parties’ reasonable expectations. It was also one-sided, considering the parties’ relative financial status at the time it was signed and at the time of divorce. Additionally, the agreement was presented to Abbie at the last minute on the eve of their destination wedding while she was under the influence of alcohol and painkillers. (Andrew B. v. Abbie B., 494 P.3d 522 (Alaska 2021)).
Example of an unfair prenup in Florida
In another recent Florida case (Bates v. Bates), the court found that the prenuptial agreement was invalid due to duress and coercion. The court noted the disparity in the parties’ bargaining positions and factors intrinsic to the wife, such as her recent age of majority, limited English fluency, and lack of business experience, which led to the conclusion that she was coerced and under emotional duress when she executed the agreement. The court also noted that the husband repeatedly told her that getting a prenup was a requirement in the U.S. (which is obviously not true). So, as you can see, this is a type of unfairness known as “procedural unconscionability,” where the circumstances surrounding the creation of the prenup are considered unfair. (Bates v. Bates, 345 So.3d 328 (2021))
Example of an unfair prenup in Washington state
In a 2009 case known as In re Bernard, a Washington court threw out a prenup due to its unfairness. At the time the prenup was signed, the wife (49) was a college graduate with a master’s degree with a net worth of about $8,000, and the husband (55) was a successful real estate developer worth about $25 million. The terms of the prenup heavily favored the husband by limiting the creation of shared assets and allowing him to increase his own wealth without sharing it with the wife. It also prevented the wife from receiving any of the husband’s assets, spousal support, or inheritance, leaving her financially vulnerable if the marriage ended. Essentially, the agreement protected Thomas’s wealth while limiting Gloria’s financial security.
The court explained that while it is perfectly reasonable for two successful professionals to want to protect their own assets in a prenup. However, problems arise when a prenup is heavily one-sided and prevents one spouse from building their own wealth while also shutting them out of any share of the other spouse’s assets. This kind of agreement is simply unfair. (In re Bernard, 165 Wash.2d 895 (Wash. 2009)).
Example of an unfair prenup in New York
In a 2015 case, a New York court deemed a prenup unfair and invalidated it. The court explained that because the spouses had such a vast disparity in assets and net worth, the fact that the husband presented her with the prenup the day before the wedding in a “take-it-or-leave-it” manner when the wife had already moved into the marital home with her children was enough to deem it unfair. (Smith v. Smith, 129 A.D.3d 934 (N.Y. App. Div. 2015)). The moral of the story here is that the circumstances surrounding the creation of the prenup can be enough for a court to deem it unfair, even if the terms aren’t necessarily unfair.
Another example of an unfair prenup in New York
A prenuptial agreement that left the wife with virtually no financial support after divorce was deemed unconscionable by a New York court. The agreement waived both parties’ rights to each other’s separate property and limited the husband’s obligation to a mere $20,000 lump sum payment when he made $300,000 annually. Considering the husband’s substantial income and the fact that the wife was unemployed and the primary caregiver for their young children, enforcing this agreement would have left her destitute and potentially reliant on public assistance. (Taha v. Elzemity, 157 A.D.3d 744 (N.Y. App. Div. 2018)).
How to avoid an unfair prenup
You may be getting worried, but don’t! These cases throwing out a prenup for being unfair are few and far between. However, you may be wondering how to avoid this situation. Here are some tips to help you avoid an “unfair prenup” ruling one day:
- Make sure each party has enough time to review the terms of the agreement.
- Make sure each party gets a lawyer (if they want one), and if they don’t want one, make sure they at least have enough time to get one.
- Make sure neither party is coercing the other to sign the agreement (i.e., don’t lie to your spouse in any way, shape, or form or put any undue force on them).
- Make sure the terms of the agreement won’t leave any person destitute or on public assistance.
- Make sure the prenup provides at least one reasonable provision for each party.
The main goal is to focus on fairness and equity between both parties. And while nothing is foolproof, the above tips are a good start to securing your enforceable prenuptial agreement.
Examples of unfair prenuptial agreements
As you can see from the real cases above, there’s no cut-and-dry formula for determining what is “unfair.” It is a case-by-case situation that a court must determine based on state law and your circumstances. However, here are some examples of what may be considered an unfair prenup:
- The “One-Sided Prenup”: Prenups that heavily favor one spouse and leave practically nothing for the other spouse.
- The “Coerced Prenup”: Prenups can be unfair based on the circumstances surrounding the creation of the agreement, such as fraudulently coercing your partner into the prenup.
- The “Stay-at-Home Spouse Trap”: Agreements that severely disadvantage a spouse who sacrifices their career for the family. For example, knowing that one party is or will be a stay-at-home parent and then leaving them with nothing since they do not have an income.
- The “Rushed Prenup”: Prenups can also be unfair based on the time presented and given for the prenup. For example, if you present a prenup to your spouse minutes before walking down the aisle and tell them, “sign this or no wedding,” it may be considered unfair.
As you can see, there are several different ways to get to an unfair prenup–it’s not just having an agreement that is unfair, it could also be the circumstances surrounding the creation of the agreement that make it unfair.
The bottom line on unfair prenups
As you can see from the examples above, “unfairness” in a prenup can come from the surrounding circumstances of creating the agreement (such as coercing someone to sign it) or the terms itself (being overly one-sided). It can be difficult to get a prenup thrown out based on just the terms itself if all of the other surrounding circumstances were fair (such as each party having enough time to review, having their own attorney, etc.). However, if the terms are still so unfair that no reasonable human being would sign it, then a court may throw out the agreement. Especially if enforcing the agreement would make one person destitute or a public charge. The bottom line? Make sure at least one party has something in their favor in the agreement. While this isn’t foolproof, it’s a good start.
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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