We hope you never have to get to this point, but if you do, don’t panic. If your spouse is contesting your prenup in court, you still have a chance to argue your side of the story. It’s not an automatic sentence. We’re going to keep it real with you: there’s not much you can do if your prenup is contested in court except hire a great attorney, follow their instructions, and hope for the best. What’s done is done, and there are really only preventative measures you could’ve taken to avoid the possibility of your prenup being contested in the future. For example, make sure you use an attorney or HelloPrenup to create a state-compliant and valid prenup, to begin with. Anyway, we’re here now, so if your prenup is being contested in court, keep reading to understand what to expect and what things you can do.
What does contesting a prenup in court mean?
As you probably know, a prenup is a contract between two people who are about to get married. Prenups are contracts, and like any American contract, they can be “thrown out” by a judge for various reasons. A judge could throw out just one or two clauses or the whole dang contract. In short, contesting a prenup in court simply means arguing that the prenup is not enforceable and should be thrown out in part or in whole. Either way, you are asking a court to throw out part or all of the prenup for some reason.
Contesting a prenup usually arises during a divorce proceeding where one person wants to enforce the prenup, and the other person does not.
What are some ways you can contest a prenup?
Prenups can generally be contested in two major ways: (1) procedurally, meaning one party argues something is wrong with the way the prenup was created, and/or (2) substantively, meaning one party argues something is wrong with the contents of the prenup.
Contesting a prenup procedurally
Let’s first dive into the ways a prenup can be contested procedurally. For starters, any prenup that is not notarized and/or signed properly could be contested. This would only be true in states that require notarization for a valid prenup. Every state requires a signature on the prenup. For instance, let’s say you and your spouse execute a prenup, and everything is perfect, except you forgot to get it notarized in a state that requires notarization. If your spouse contests that prenup in court based on lack of notarization, the odds are not in your favor. The same thing goes for if there is no signature(s). Also, if you live in a state that requires witnesses but the prenup does not have them, then that could also be grounds for invalidation of a prenup.
Another way to contest a prenup procedurally would be to argue the context around the signing of the prenup. For example, was one person forced (on some level) to sign the agreement? Courts typically refer to this concept as “voluntariness” and whether or not both parties signed the prenup voluntarily. If a prenup is not signed voluntarily, it’s most likely going to be invalid. Involuntariness is typically seen as duress, coercion, undue influence, fraud, mistake, etc.
In the process of making a prenup, every state requires some level of financial disclosure. This is a procedural step in creating a valid prenup which requires each party to divulge all of their financial information to the other person. Many states will throw out your prenup entirely if financial disclosure is not done sufficiently. For example, if one party left out the fact that they had $500,000 in debt. A court could say that it is totally unfair to their partner since they had no idea about the level of debt. Why is this unfair? Because the other partner couldn’t reasonably make educated decisions on separate and marital finances without knowing the full picture. The prenup in this scenario could be contested in court for lack of financial disclosure or insufficient financial disclosure.
Sometimes the lack of attorney representation can get a prenup thrown out. There are a few states that require attorney representation for prenups, and lack of one can get your prenup invalidated. However, many states do not strictly require an attorney for a valid prenup but consider it to be one factor toward proving the prenup was unfair. For instance, if one spouse had a lawyer and the other did not, and the prenup was presented too close to the wedding, and the terms of the prenup were extremely one-sided, a person may contest it, and a court might agree. The court might say that with all three things considered, it’s unenforceable. On the flip side, if that same couple had only had one of those factors take place (say only lack of attorney representation), the prenup may not have been thrown out.
Contesting a prenup substantively
Now, let’s turn to some of the substantive reasons a prenup could be contested in court. First of all, if any of the clauses are unlawful or against public policy, they could be contested. It makes sense, right? You can’t put illegal acts into your contract and expect a court to uphold them. For example, let’s say you included in your prenup that one spouse is required to pay $500 in child support each month in the event of a divorce. This is unlawful because nearly every single state does not allow people to include child matters in their prenups. Why? Because children are individuals with dynamic needs and desires that change over time, and their parents don’t have a crystal ball to say what will be the best for the child years before the child is possibly even born!
Another substantive reason a prenup may be contested is unconscionability. This term is defined differently from state to state. In short, it generally means something super, super unfair. What is considered unconscionable in California may not be considered unconscionable in Maryland, so it is very state-dependent. One thing to remember is prenups do not need to be 50/50, but they should also not leave one person destitute while the other person lives in luxury. What a court considers unconscionable is very fact driven and can vary from case to case.
What to do if a prenup is contested in court?
There’s not much you can do besides hiring a family law attorney who is experienced in prenuptial agreements to help you. Even if your prenup is contested in court, it doesn’t automatically mean you are SOL. You still have a fighting chance and may be able to turn the ship around (meaning you may win the case). It really just depends on the facts of your situation and the laws applicable to your case.
Step 1: Don’t panic; just because your prenup is being contested doesn’t mean it will be automatically thrown out. You will get to argue your side, too.
Step 2: Hire an experienced prenuptial agreement attorney to help you win the case.
Step 3: Assist your attorney in whatever they need, whether it’s providing them with documents or answering questions. The more helpful you are, the easier your attorney can do their job.
Step 4: Wait for the court’s decision.
What happens if my prenup is successfully contested in court?
If the court decides that your prenup is invalid and unenforceable after your ex-spouse successfully contests it in court, then you will be bound by the default divorce laws of your state. A valid and enforceable prenup generally overrides state default divorce laws, but if your prenup is found to be unenforceable, then you have to abide by the default rules again. Don’t panic; this isn’t a death sentence. State default divorce laws are crafted to attempt to create fair outcomes. Sometimes people don’t like those outcomes, but that’s just the nature of divorce.
The Bottom Line
At the end of the day, the best thing you can do to avoid having your prenup contested in court is to create a valid and enforceable agreement from the get-go. Using HelloPrenup or a local attorney, or a combination of both, is your best bet at creating a legally sound prenuptial agreement.
If you’re past that point, and what’s done is done, then the only thing you can do now is hire an attorney, follow their instructions, and hold out hope. Just because your prenup is being contested isn’t an automatic loss to the contract. You still have a chance to argue your side and win the case (i.e., enforce the prenup). Worst case scenario? Your prenup is successfully contested in court and is unenforceable. At this juncture, you will simply have to abide by the state default divorce laws.
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]