Did you know that even the most carefully crafted prenup can be challenged in court? The truth is, no contract is guaranteed to hold up in court, regardless of whether a lawyer is involved or how “ironclad” you believe it to be. Instead, the aim should be to enhance the likelihood of validity and enforcement by adhering to state laws and avoiding violating public policy. Prenuptial agreements or “prenups” are contracts that are designed to protect individuals’ assets and outline the distribution of property in the event of a divorce.
However, in a divorce, one party may decide they want to challenge the validity and enforceability of the prenup; in other words, they may ask a family court to “throw out” the prenup and apply state law instead. This article delves into the intricacies of challenging prenups and explores the various ways to do so.
Ways to get a prenup thrown out
Challenging a prenup is a legal process that involves presenting grounds for its invalidation to a court. It’s no easy feat to challenge a prenup; it costs money and takes time. Nevertheless, here are common grounds that exist to challenge a prenup:
- Lack of Financial Disclosure: Intentionally or accidentally hiding assets or debts could invalidate a prenup. Note: Some states allow you to waive financial disclosure if done correctly according to state law.
- Duress or Coercion: The agreement cannot be signed under force, threat, or undue pressure. Courts consider timing, emotional manipulation, sophistication of parties, lack of legal representation, financial disparity, immigration status, and other factors when reviewing these claims.
- Failure to Meet State Requirements: If the prenup lacks formal elements like signatures, witnesses, or notarization (required in some states), it may be invalid and thrown out.
- Unconscionability: Terms that “shock the conscience” of the court (i.e., are extremely one-sided or unfair) may be thrown out, depending on state law. For example, New York courts say that unconscionability is “the inequality of a prenup being so strong that it literally shocks the conscience and confounds anyone of common sense having entered into the prenup,” according to NY Prenup Attorney Lisa Zeiderman.
- Alimony Waiver Would Lead to Public Assistance: Many states won’t enforce alimony waivers if it means a spouse relying on government aid. For example, let’s say John and Jen get a divorce with a prenup that waives alimony (meaning Jen cannot request John to pay alimony). If Jen would need public assistance (i.e., welfare) to support herself financially, then alimony may still be ordered by a court, even though there was a validly executed prenup with an alimony waiver.
- State-specific reasons: Some states have unique rules that are not commonly seen in other states. For instance, in California, legal representation is required to modify alimony in a prenup. (See Cal. Fam. Code § 1612). Another example is in Colorado. Any waiver of rights requires legal representation OR extremely specific language in the agreement. (Colo. Rev. Stat. § 14-2-309(3)).
- Illegal or Unenforceable Clauses: For instance, unenforceable clauses include clauses about child custody or support. These are matters of public policy. These are the children’s rights, not the parents’ rights to contract around. The prenup could be entirely thrown out for including such unenforceable clauses.
- Ambiguous language: If a prenup is confusing, contradictory, or unclear, a court may not understand how to proceed with the prenup and throw it out altogether. In Country Music Star Kelsea Ballerini’s divorce, this exact situation happened- her prenup language was ambiguous and effectively stricken.
As you can see, there are a few different ways to get your prenup thrown out, from the lack of proper financial disclosure to ambiguous language and much more. This is why relying on a reputable prenup platform or an experienced prenup lawyer is key.
Real-life prenup pitfall: Kelsea Ballerini’s ambiguous agreement
Country Music Star Kelsea Ballerini’s divorce highlights the importance of clear language in prenuptial agreements. In her case, while a prenup existed, its ambiguous wording regarding alimony led to partially throwing out one of its clauses. In her divorce case, Ballerini faced conflicting interpretations of the alimony clause in her prenup. This led to both sides’ attorneys arguing over what the language meant. Due to unclear language, she had to choose between giving up half her house or potentially entering lengthy alimony hearings. This case emphasizes the importance of well-defined, non-conflicting prenup clauses to avoid misunderstandings during divorce. If your prenup contains ambiguous language, it can be thrown out entirely or in part!
Real-life prenup fail: When coercion can invalidate a prenup
Let’s take a look at a real case. In the case of Bauer v. Bauer, an Oregon court determined that a prenup was signed under coercion and effectively threw it out.
- What Happened: A prenup was thrown out by the court because the wife was pressured to sign it without adequate time, legal advice, and/or information about her husband’s finances.
- The Court’s Decision: The court determined that, based on the combination of these three circumstances (not enough time, no lawyer, and no proper financial disclosure), it declared that the wife had unfair pressure to sign the agreement, making the prenup agreement unenforceable.
As you can see, timing of the prenup is crucial, and both partners should consider their own lawyers to ensure they understand their rights. However, note that this is not a requirement for a valid prenup in Oregon; it’s just a factor that may be taken into consideration, like in Bauer v. Bauer.
Real-life prenup thrown out: Why unconscionability matters
“Unconscionable” is a legal term that describes an agreement so one-sided or grossly unfair that a court may refuse to enforce it. It quite literally “shocks the conscience” of the court. State laws define this specifically. Let’s look at a real-life Indiana case that addressed this issue, in Justus v. Justus. A prenup promised the wife $500,000 in alimony, plus $500 per week during the divorce. The prenup was signed when the husband was worth millions. By the time of divorce, his wealth had significantly decreased from $31 million to $300,000. The prenup was deemed unconscionable due to the drastic financial shift. It was considered grossly unfair to require the husband to pay the wife $500,000 in alimony when he only had $300,000. So, as you can see, prenups can be invalidated if unforeseen changes make the original terms grossly unfair (i.e., unconscionable) at the time of divorce, depending on your state’s laws.
Seek out legal advice if you want to get your prenup thrown out
Challenging a prenuptial agreement is a complex legal matter that requires professional guidance. Consulting with an experienced family law attorney is an important first step to understanding the legal implications and potential success of such a challenge. (I.e., do you actually have a chance of getting your prenup thrown out or not?). Even if you have a low chance of getting your prenup thrown out, a lawyer may assist you with the alternatives to challenging a prenup, such as mediation and/or negotiations with your partner.
Frequently Asked Questions (FAQs) about getting a prenup thrown out
Let’s dive into some more FAQs about how to get a prenup thrown out.
Q: Is getting a prenup thrown out common?
A: While there is no specific data showing how many prenups are thrown out a year since prenups are not public record, we believe it is not super common to challenge a prenup because there are only a handful of grounds to challenge them on; it is expensive and time-consuming to do, and courts generally favor prenups as a policy. We also spoke with California Attorney Raymond Hekmat, who agreed that getting a prenup thrown out is rare!
Q: Is it difficult to challenge a prenup?
A: Yes, it is relatively difficult to challenge a prenup for the same reasons as above. It is expensive; there are only certain grounds on which you can challenge a prenup, and courts tend to favor prenups.
Q: Are there alternatives to challenging a prenuptial agreement in court?
A: The alternative would be mediation with your spouse and/or negotiating the terms. For example, if you want to get the prenup thrown out because you don’t think it’s fair, you can first try mediation and/or negotiation to try to come to new terms that you feel are fair.
Q: How long does the process of challenging a prenuptial agreement usually take?
A: Going through the legal system to get a prenup successfully thrown out can take months or even years to complete, depending on the specifics of the case and the court’s schedule.
Bottom line: Getting a prenup thrown out is rare but possible!
To sum it up, understanding the grounds for unenforceability is crucial if you want to understand how to get a prenup thrown out. There are several ways to challenge a prenup and get it successfully deemed unenforceable: improper financial disclosure, duress/coercion, state formalities, unconscionability, an alimony clause that would require public assistance, terms against public policy, and/or state-specific requirements.
“As long as a prenup is entered into following the proper legal procedures, the courts will look at a prenup as a binding contract between two people entering a marriage. There are a few rare cases of a prenup being held to be not enforceable when proper disclosures may not have been made, a party signing the prenup did not have the opportunity to consult with an attorney, or if other legal procedures have not been followed. Otherwise, financial terms agreed upon between two individuals will most likely be held to be valid and enforceable.” – Attorney Raymond Hekmat
Bottom line? It is fairly difficult to challenge and successfully get a prenup thrown out nowadays, as many states favor a couple’s right to contract with one another. So go ahead and get that prenup using a reputable legal resource, without the fear that it will get thrown out!
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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