If you are reading this and a court has already deemed your prenup invalid, we hate to break it to you, but there’s not much you can do at this point. You may be able to challenge the decision in court, but you’ll need time, money, and a good attorney for that. Even then, it’s not guaranteed to work.
If you are reading this and you don’t have a prenup yet but are worried about possibly having an invalidated one, then you’ve come to the right place! We’ve outlined a list of ways for you to make sure to avoid an invalid prenup. Our best suggestion to you is to use either HelloPrenup’s state-compliant platform, a local attorney, or a combination of both.
What happens if your prenup is invalidated
Well, folks. We hate to say it, but you are SOL if a court declares your prenup invalid. An invalid prenup is pretty much no prenup at all. A court will not enforce an invalid prenup, which means you must go through your divorce according to the state default divorce laws. Dun, dun, dun. If your prenup is invalidated, you no longer go by your rules (i.e., your prenup) but instead, by the rules of the state and the discretion of your assigned divorce judge.
Overview of default divorce laws
Before we dive into how to avoid an invalidated prenup, let’s first walk through what your situation is if you already have an invalidated prenup. Again, if your prenup is invalid, the default divorce laws will apply to property division, debt allocation, alimony, pet custody, etc., etc. Some states also give a lot of discretion to judges to make certain calls. That means that a judge will look at your specific situation and make a “judgment” call on what to do.
Let’s start with the two different property division frameworks that exist in the United States: community property and equitable division. A state is generally either one or the other.
In community property states, the “stuff” that you accumulated during the marriage is generally split 50/50, regardless of contribution. Let’s say you earned $100,000 and invested that into a fund that grew to $200,000 during the marriage, with no help from your spouse. That’s most likely going to be considered community property and split 50/50.
In equitable distribution states, the property is split up according to a list of state factors, such as the duration of the marriage, the age of the parties, the health of the parties, and more. It might not be a 50/50 split. It could also be a 60/40, 70/30, or any other combination of split, depending on your situation.
As for alimony default rules, which is a different topic than property division, this is also very state-dependent. Each state has its own calculation for determining if alimony is appropriate, and if so, how much should it be for and for how long?
How to prevent getting your prenup invalidated
Okay, we’ve scared you enough; now it’s time to show you how to avoid this disastrous outcome (if it’s not too late already)! We want to preface this paragraph by reminding you that any type of contract in the U.S. can be invalidated for a variety of different reasons. It’s not just a prenup thing. Contracts all over the country are invalidated all the time. For prenups, there are certain requirements laid out in state law that explain what you need to do to create a valid prenup. If you don’t do these things, you risk invalidating the prenup. What would invalidate a prenup may not invalidate a lease agreement. It’s very prenup-specific.
Avoiding an invalid prenup is fairly simple, but you’re going to need some help. We’ll start off by suggesting you either hire an attorney, use the HelloPrenup platform, or a combination of both. Any of these options will give you optimal chances of creating a valid prenup. If you try to do a prenup yourself, you are putting yourself at a high risk of an invalid prenup.
As a reminder, the validity requirements of a prenup vary from state to state. What is considered a valid prenup in California may not be a valid prenup in Louisiana. With that said, we’ve gathered a list of some of the more commonly used validity requirements from many of the states. We encourage you to utilize HelloPrenup’s state-compliant platform or an attorney in your state to make sure you don’t miss any important requirements.
Put it in writing and sign it
This is exactly what it sounds like. Put your prenup in writing and make sure both of you sign it. If you go to the court saying your honey PROMISED on their MeeMaw’s grave to give you $1 million dollars if you ever got divorced, but you never wrote it down… too bad. If you go crawling into the courtroom on your knees, clutching a written prenup with no signatures… SOL. Neither of those is a valid prenup. If you don’t follow the state prenup validity requirements, you don’t have a valid prenup.
Get it notarized
Some states require this; some do not. It’s a good idea to have it done either way. It won’t hurt you to get it notarized, even if it isn’t necessarily required in your state. Why? Because notarization helps speak to the validity and authenticity of the prenup. Notarization is meant to deter fraud and does so by making sure you are who you say you are and you are the one who actually signed the prenup.
Get it witnessed (if your state requires it)
There are only a handful of states that require witnesses to a prenup, but if you are in one of those states and you don’t have witnesses, you do not have a valid prenup. Depending on the state, it may be one witness or two witnesses. The witnesses must be there to watch you sign the prenup as another way to deter fraud, similar to a notary. Some states allow you to have random people as your witness; it could be a friend or a random Joe. Other states may require something more formal, like a state official. Reason #2,324,984 why you need either HelloPrenup’s state-compliant platform and/or an attorney to help make sure you don’t miss a beat.
Make sure you are both entering the prenup voluntarily, not under any type of force
If you handcuff your spouse to the table, hold a gun to their head, and say, “sign this or else,” you don’t have a valid prenup. No court in the country would uphold a contract that someone signed with a gun to their head. The person did not sign the contract of their own free will. It is not voluntary. People need to enter prenups (and pretty much any other contract) voluntarily, without duress, coercion, undue influence, fraud, or any other type of force.
Now, there are much less dramatic scenarios that end up being invalidated due to duress or coercion. For example, if a person were to present a prenup to their spouse the day of the wedding, and that person was unable to cancel the wedding due to the short notice, and maybe they also relied on their spouse for immigration status, a court could find that these three things combined are enough to show duress. Duress=involuntary=invalid prenup.
Make sure to avoid any and all unconscionable terms
Unconscionable terms are basically anything that is overly unfair. The definition varies slightly depending on what state you’re in; some states say unconscionable means “shocking the conscience,” while others say it’s “grossly unfair.” Either way, the takeaway of the term is that it is extremely unfair. Also, what one state deems unconscionable may not be unconscionable in another state. An example of an unconscionable prenup clause would be requiring an unethical demand (i.e., requiring someone to do a handstand for 20 hours if they don’t do X), waiving alimony when it would leave the person needing public assistance, certain lifestyle clauses, and more.
Also, make sure to avoid unlawful terms
Along the same vein of unconscionable terms are unlawful terms. Imagine this: a court is reviewing a prenup that states, “Spouse A must shoot herself in the foot if she cheats.” What is the court going to do? Tie-down Spouse A and say, “okay, it’s time; you cheated, so shoot yourself!” NO! Of course not. That would be ridiculous. This would not be a valid clause that a court would enforce. Now, let’s bring it down to real life and how this really shows up. Including child custody and/or child support terms in a prenup (in most states) is an unlawful clause. Most states do not allow parents to stipulate on a child’s custody and/or support in a prenup. Why not? They’re their parents; they know what’s best for them. That is possibly true, but a child’s needs are dynamic and change frequently and shouldn’t be determined by two biased parties years before the divorce. What was best for them then may not be the case now. At the end of the day, a child’s best interests are the most important thing, and the court will utilize state law to make custody and support determinations on their behalf.
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]