Enforcement and Nonenforcement of the Prenup

Common Arguments

• One or more formal requirements were not fulfilled: This argument claims that the agreement wasn’t in writing, or wasn’t signed by both parties in front of the proper witnesses or officials, etc. Issues of this nature can be avoided by having both attorneys review and prepare the final document and oversee the signing.
• “I was pressured or threatened into signing”: In other words, this argument claims that the agreement was signed under duress. Again, ensuring that both parties are represented by independent counsel will go a long way toward preventing an attack based upon duress. Allowing plenty of time for consideration is also crucial, especially in cases in which the agreement would appear to limit one party’s rights significantly. It may also help if during the signing—which should be videotaped—each party articulates his or her understanding as to the effect the agreement will have on their rights, and why the agreement is fair and reasonable. Of course, if duress actually is involved in any part of the negotiation or signing, the agreement will not be valid.
• “I wasn’t given adequate time for consideration”: Though no specific time period is required for consideration, an agreement that is signed within a few weeks of a set wedding date may be vulnerable to attack on this basis. Again, attorney involvement is helpful, as is evidence of thoughtful consideration and negotiation over time.
• “I didn’t understand a provision or I thought it meant something different”: If one of the parties truly did not understand the meaning, operation, or implications of a provision before signing the agreement, they cannot be said to have entered into the agreement voluntarily. And if the provision in question operates to that party’s detriment, it’s likely to be set aside unless evidence can be produced that the party did in fact understand and appreciate the consequences of the agreement. Separate, independent legal representation is key here as well, because it offers evidence that both people were fully advised before signing the agreement.
• “My spouse’s disclosure was false or incomplete”: If you lie in your disclosure to your spouse or fail to include important facts, then any prenuptial agreement you make on the basis of that disclosure is doomed. Make sure your disclosures are written, detailed, honest, and thorough. They should acknowledge uncertainties where they exist and provide a range of estimates where precision is impossible. In addition, they should be given to your spouse as early as possible and should be appended to and included in the agreement that you ultimately sign.
• No independent counsel: Though it’s not a formal requirement, ensuring that both parties are represented by separate and independent counsel dramatically increases the likelihood that both the negotiation and the resulting agreement will be fair and reasonable. If one or both parties have not been represented by counsel, the opposite presumption arises, and any potential claims of unfairness will be viewed with merit.
• The parties didn’t follow their own rules: If the parties have disregarded part of their agreement or acted in a manner inconsistent with it, doubt may be cast on the meaning—or even the validity—of the agreement. For example, if your prenup provides that certain assets should be considered separate property, but you then commingle those assets with marital assets, a court may disregard the empty words of the prenup in favor of your demonstrated practices. It’s also important that you actually do the things your prenup says you’ll do (such as contribute funds to a joint account, revise your will in a certain way, list your spouse as beneficiary on an insurance policy, and so on). The prenuptial agreement is a contract, after all, and failing to follow parts of it constitutes a breach that could dissolve the agreement or make you liable to your spouse for damages.