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.
Grounds for challenging a prenup
Let’s start off with the handful of ways that someone can challenge a prenup to ultimately get it thrown out by a court. Challenging a prenup is a legal process that involves presenting grounds for its invalidation. Some common grounds include lack of financial disclosure, duress/coercion, failure to meet state formalities, unconscionability, alimony waiver thrown out if it would result in public assistance, and the subject of the prenup contained terms against public policy or state laws.
Lack of financial disclosure
Financial disclosure is the sharing of financial information with your partner. This means disclosing all assets, debt, income, businesses, accounts, and potential inheritances. Everything must be shared; you cannot skip anything. For example, you can’t share all of your assets but leave out how much debt you have. Every state requires some level of financial disclosure, and a few states will even allow you to waive financial disclosure as long as you follow specific steps.
Every state has its own rules about how it looks at financial disclosure, but most states agree that if one spouse can show that the other spouse did not provide full and fair financial disclosure, it’s grounds for unenforceability. However, there are some exceptions. Many states say that you can’t claim a lack of disclosure if you have adequate knowledge of said finances. For example, if you are the accountant for your spouse’s business (i.e., well aware of the value of the business), many states would say you can’t later claim to have lacked financial disclosure of the business, even if your spouse didn’t disclose it because you had adequate knowledge of the business as the accountant.
Again, every state has slightly different ways of approaching financial disclosure, so it is best to do your research and speak with an attorney in your state if you have questions about it. The key takeaway is to make sure you disclose all finances; don’t hide or skimp on anything! If you hide or skimp, you run the risk of getting your prenup thrown out!
All states agree that if you do not enter into a prenup voluntarily, it’s grounds to get it thrown out. Typically, most states consider duress, coercion, undue influence, mistake, and misrepresentation the different ways you can “involuntarily” sign an agreement. Some of the most commonly cited reasons in the context of a prenup are duress and coercion. Duress is often defined as being compelled, forced, or threatened into signing the prenup, often under emotional or physical duress. Coercion, on the other hand, is comparable to duress but typically entails more nuanced forms of pressure, like manipulation or continuous persuasion, which can compromise a party’s capacity to make a decision freely and voluntarily.
If a party challenges a prenup and can show that they signed a prenup involuntarily (i.e., through some form of duress, coercion, undue influence, etc.), then they will likely get the prenup thrown out.
How does this play out in real life? 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. This conclusion was based on several factors, including the fact that the prenup was presented too close to the wedding day + there was an absence of legal representation for the wife + insufficient time for her to secure legal counsel + the husband’s failure to provide financial disclosure. Ultimately, the prenup was thrown out because of coercion. It’s clear that the combination of the above factors led to the court’s determination of coercion in this case.
Failure to meet state formalities
Every state has its own required formalities that make a prenup valid. Virtually all states require prenups to be in writing and signed. However, some states have additional requirements, such as notarization, one or multiple witnesses, and/or certain contract language requirements. For example, in Minnesota, a prenup must be signed and notarized before two witnesses. (See Minn. Stat. § 519.11). If a prenup does not meet the state’s required formalities, a party may challenge the prenup’s validity and ultimately ask a court to throw it out.
Unconscionability is an expansive term that is defined slightly differently, state by state. The general consensus of the meaning of unconscionability is “extremely unfair or one-sided.” Unconscionability can apply to the actual terms of the prenup or the circumstances surrounding the prenup. For example, unconscionability may be found if the prenup terms are extremely one-sided, if the circumstances around the creation of the prenup were extremely unfair, or if the circumstances at the time of divorce involving the prenup are extremely unfair (i.e., change in circumstances). Not every state has the same laws regarding unconscionability. For example, some states will look at unconscionability at the time of divorce or if the circumstances have changed drastically since the drafting of the agreement. Others will only look at the creation of the prenup. Others will do both. Basically, it’s an overall look at fairness surrounding the prenup from various angles.
Again, what is considered “unconscionable” will vary from state to state. So, if you or your partner wants to challenge a prenup based on unconscionability, it will depend on what your state law says about it. For example, in a case from Indiana, known as Justus v. Justus, you can see how a prenup can be considered unconscionable due to changed circumstances at the time of divorce. In this case, the prenup between a husband and wife stated that he would pay her $500,000 in alimony and $500 per week during divorce proceedings. When they signed it, the husband’s net worth was approximately $31 million. By the time they got a divorce, the husband’s net worth had dwindled to $300,000. Yet, the wife still requested the $500,000 payout. The court said nope–this significant change in circumstances makes the agreement unconscionable.
Alimony waiver thrown out if it would result in public assistance
This varies from state to state, but this is a common ground for getting an alimony provision thrown out in many states. If you and your partner include a provision in your prenup that waives or modifies alimony (i.e., limits or completely removes the right for one person to receive financial support from the other), and enforcing such provision would result in one person needing to rely on public assistance, then the court may throw out that provision and require alimony to be paid.
For example, let’s say you and your partner waive alimony in your prenup. Then, down the road, you get a divorce, and you enforce your prenup. However, by doing so, you are enforcing the alimony provision. If your partner doesn’t receive alimony from you, they will need to seek public assistance. In this case, the spouse can challenge the prenup and ask the court to throw out the alimony provision, and many states will do so because the alternative is putting the spouse on public aid (the state wants to avoid this).
Subject of the prenup contains terms against public policy or state laws
If your prenup contains illegal terms or clauses that are against public policy, it may be thrown out. For example, virtually all states agree that child support and child custody arrangements are not permitted in prenups as a matter of policy. If a prenup has child custody arrangements, a person may ask a court to throw out the prenup based on the agreement containing clauses that are against public policy. Whether or not the agreement gets thrown out in whole or in part depends on the terms of the agreement, the situation, and the state laws.
Other state-specific reasons
Again, every state has its own rules and regulations surrounding what prenups can and cannot be enforced. Some states have unique rules that are not commonly seen in other states. For instance, in California, an alimony clause modifying or eliminating it will not be enforced unless there is legal representation. (See Cal. Fam. Code § 1612). Another example is in Colorado–any waiver of rights requires legal representation OR extremely specific language in the agreement. (You can see what language is required here in Colo. Rev. Stat. § 14-2-309(3)).
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 negotiations with your partner.
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, alimony clause would require public assistance, terms against public policy, and/or state-specific requirements. At the end of the day, 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.
Frequently Asked Questions (FAQs) about getting 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, 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 to do, and courts generally favor prenups as a policy.
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.
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]