This is a common question – will my prenup hold up in court? The answer is not as straightforward as you may want to think, so let’s talk about it!

What does “holding up in court” mean, exactly?

When we discuss the idea of a prenup “not holding up in court,” we are talking about a prenup that has been contested by either of the spouses in a divorce trial. The spouses have essentially said, we don’t agree on all the terms of the divorce, and we do not agree to abide by the prenup. If that is the case, a judge will need to step in, and usually in the form of a divorce trial, decide the fate of your prenuptial agreement. 

Although there is no guarantee that a prenup will be enforced by a court if disputed in divorce litigation, it is becoming less and less common that they get “thrown out” if both parties entered the agreement willingly and with full disclosure of finances, and the prenup was created in accordance with state requirements for a valid prenup. Again, in order for a prenup to be “thrown out” by a judge, the divorcing spouses would need to be engaged in divorce litigation, and would need to be contesting the validity of the prenup. This is an  important distinction because many people think upon a divorce, a judge automatically decides whether or not the prenup  is valid. This is not true. The enforceability of a prenup is up for debate when a divorcing couple does not agree to abide by the terms, and asks a court to interpret the agreement, or to invalidate or enforce the agreement. In many instances, a prenuptial agreement is effective in helping to avoid divorce litigation, because it acts as a layer of protection in the way of setting expectations prior to entering a marriage and a mutual understanding by the couple. 

Will a prenuptial agreement made online hold up?

No legal contract is 100% guaranteed to “hold up” if contested in a litigated case, and this is true whether you use an attorney or not. However, a prenup that you make online is likely to be valid if you follow the right steps. Your goal should be to increase your chances of validity and enforcement by creating a prenuptial agreement that aligns with state laws and does not violate public policy. 

In many states, hiring an attorney to represent you is a way of proving to the court that you knew what you were signing, and understood your legal rights prior to signing your prenup agreement. What does that do? It removes the future argument you could make  if you were trying to invalidate the agreement. Hiring an attorney basically shows to the court that, ‘yes, I hired this attorney so I was informed of my legal rights and I knew what I was signing.’  

How does HelloPrenup fall into this conversation? Many couples use our platform as a way to create a draft of their prenuptial agreement, before bringing that draft to an attorney for advice, review or revision. This keeps their total cost down, because they are bringing a full, agreed-upon draft to the attorney rather than having an attorney negotiate and draft the agreement from scratch. 

If you have specific questions about the enforceability of your agreement, you want an attorney to review and advise on your prenup, you should take your prenuptial agreement to an attorney licensed in your state.

What makes a prenup invalid?

Just as we have previously discussed what makes a prenup valid, it’s equally as important to understand what makes a prenup invalid. Below we have listed out a few examples. 

Not Disclosing Assets 

When you create a prenup with your partner, each person must disclose all of their assets and debts. Did your spouse undervalue assets or not disclose them at all? Suppose you can prove this later on, and a judge must consider that there was not full and fair, or full and accurate disclosure. In many states and in many cases, this would be a serious consideration for a judge when considering not to enforce your prenup. Moral of the story? Be sure to disclose all of your assets, debt, and yes, income, too. 

An Oral Prenup 

A prenup must be in writing. Period, end of story. To be clear, you cannot simply make oral statements about a prenup and take them as a contract. Not only are oral prenups not valid, but most prenups, like any contract, should be notarized. 

Don’t Sign a Prenup the Day of Your Wedding. 

Although signing a prenup the day of your wedding is not enough to invalidate the prenup in most states, it certainly creates an argument around not enough time for one or either party to obtain the legal advice or representation they desired. This creates holes in your argument if you are the spouse wanting to uphold the prenup, while the other spouse contests its validity. If you sign a prenup the day before tying the knot, just beware- you are making it easier for a court to reconsider certain provisions, or even the entirety of the agreement itself. 

Not Following State Requirements for a Valid Prenup

Different states have different requirements when it comes to what constitutes a valid agreement. In certain states, like California, you must have at least 7 days in between presentation of the final agreement and signing. Other states do not have this requirement of the “7 day rule.” This is just an example, but shows you how states can differ quite a bit when it comes to the nuances of what constitutes a valid prenup. 

Why do the nuances matter? It’s all the same, right? Nope. If you don’t follow the requirements for a valid agreement in that state, upon divorce, you may have an uphill battle and the courts may strike part or all of your agreement.