Maybe you’ve heard that prenups are sometimes unenforceable, and that is true! But if you have a well-written, legally sound prenup, having a court declare your prenup unenforceable is rare. Remember, prenups are contracts at the end of the day, and just like any type of contract, they can sometimes be “thrown out” (or unenforceable) based on a number of reasons.
Not in writing
It’s quite simple: a verbal agreement will not be enforced. You can’t swear on your Grandmother’s grave and tell your partner, “I promise not to ask you for alimony or any of your property,” and then expect it to be enforced in court. Put it in writing if you want it to be enforced.
Not signed by both parties
We’ve said it once, and we’ll say it again. A prenuptial agreement without signatures is just a piece of paper; it means pretty much nothing, legally. Signatures are a cornerstone of written contracts, as they signify each party’s agreement to the terms. HelloPrenup even recommends initialing every page in addition to the full signature at the end.
Not notarized or witnessed in a state that requires it
Notarization is the act of signing a document, such as a prenup, in front of a notary public to deter fraud and verify identities. Having witnesses to a prenup is quite literally having one or two people watch you sign the prenup to make sure everything is legitimate. Not every state requires notarization and/or witnesses. However, if your state is one that requires notarization and/or witnesses, then you must do it, and if you don’t, it’s most likely going to be considered an invalid prenup.
Either party entered the agreement involuntarily
Prenups must be entered into voluntarily. What is considered voluntary? It generally means that you entered the prenup without any unnecessary force, such as duress, coercion, undue influence, fraud, etc. It would be totally unfair to enforce a contract that was entered into under some type of force. For example, if your spouse hog-tied you down and made you sign the prenup with a pen and your mouth. Okay, that’s an extreme example, but you catch our drift. What is considered involuntary varies slightly from state to state. Sometimes, duress (i.e., involuntariness) can look like presenting a prenup to your partner right before walking down the aisle, and your partner has no other option but to sign it (maybe they can’t not marry you because they need support and/or citizen status and they also can’t cancel the wedding at that point).
There are unconscionable terms
Unconscionable sounds like a scary word. It really just means something along the lines of “extremely unfair,” but each state defines unconscionable slightly differently. Some states say something is unconscionable if it shocks the conscience; others say it’s unconscionable if it’s grossly unfair. But it really comes down to one thing: extreme unfairness. If a court finds one or more of your prenup terms are unconscionable, they may strike the term by itself or throw out the entire contract. In other words, either the term alone or the entire contract will be unenforceable. A court is not going to enforce an unconscionable term.
An example of unconscionable might be something as simple as someone waiving spousal support in a prenup when it would leave that same person destitute and needing public assistance while the other partner sails off on their yacht. Unethical demands can also be deemed unconscionable, such as requiring your partner to maintain a certain weight during the marriage (e.g., no gaining more than 20 lbs). Yuck!
There are unlawful terms
Along the same vein of unconscionable terms are unlawful terms. These are very similar to unconscionable, but they generally encompass anything against the law. You cannot write into a prenup and ask a court to enforce something that is against the law; it’s common sense! For example, you can’t say, “if we get a divorce, Husband gets to shoot Wife in the foot.” No court in the country will be enforcing that one.
A more relevant unlawful term that isn’t as extreme as shooting someone would be including terms about child custody, visitation, or support. Most states do not allow couples to contract around child matters in a prenup (with a few states allowing narrow exceptions to this). Why? Because children are individuals with needs and wants that shouldn’t be contracted, possibly years before the divorce even occurs. Life changes, and so do children; custody, visitation, and support should be evaluated by a court at the time of divorce for what is in the child’s best interests.
It was executed too close to the wedding
Most courts nowadays will not throw out a prenup for signing it too close to the wedding day alone. However, too close to the wedding, coupled with other factors, your prenup could be unenforceable. Keep in mind some states, like New Hampshire, actually have a harder requirement for executing the prenup 30 days before the wedding. If it’s executed less than 30 days before the wedding day, it has a very high chance of being unenforceable. In California, there’s something called the 7-day rule, which requires at least seven days between the presentation of the prenup and the signing of the prenup. If you execute the prenup five days before the wedding, you fail the 7-day rule and very likely have yourself an unenforceable prenup.
Lack of legal counsel when legal counsel was required
Most states do not require parties to a prenup to have legal representation. However, if you are in one of the states that do require it and you don’t have a lawyer present, the prenup will most likely not be enforced. Also, if you two decide to share a lawyer (any good lawyer would not agree to this), it may be unenforceable since one lawyer may not represent two opposing parties to a contract; it’s a conflict of interest.
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]