A prenuptial agreement is only valuable if it will be enforced when needed. Courts regularly review and sometimes invalidate prenups that fail to meet legal requirements or contain unconscionable terms. Understanding the factors that determine enforceability helps couples create agreements that will withstand legal challenges. Proper execution and fair terms are essential to ensuring your prenuptial agreement accomplishes its intended purpose.
Voluntary Execution
Both parties must enter a prenuptial agreement voluntarily without coercion, duress, or undue influence. Courts carefully examine the circumstances surrounding execution to determine whether genuine consent existed. Presenting an agreement just days before a wedding when deposits are non-refundable, guests have made travel arrangements, and emotional pressure is high may constitute duress that invalidates the agreement.
Adequate time for review and consideration is essential. Courts look more favorably on agreements presented months before the wedding, giving both parties opportunity to review terms, consult with attorneys, negotiate changes, and make informed decisions. Rushing the process suggests one party may not have fully understood or genuinely agreed to the terms, creating grounds for later challenge.
Full Financial Disclosure
Complete and honest disclosure of financial information is a cornerstone of prenuptial agreement validity. Each party must provide accurate information about their assets, debts, income, and financial obligations. Hiding assets or understating wealth can render the entire agreement unenforceable, as the other party cannot meaningfully agree to terms without understanding what they are giving up.
Most well-drafted prenuptial agreements include detailed financial schedules listing each party's assets and liabilities, along with representations that the disclosure is complete and accurate. Some couples exchange formal financial statements or tax returns. The more thorough and documented the disclosure process, the harder it becomes for either party to later claim they were misled about the other's financial situation.
Independent Legal Counsel
While not always legally required, having each party represented by independent legal counsel significantly strengthens enforceability. An attorney ensures their client understands the agreement's terms, implications, and any rights being waived. Courts are far more likely to enforce agreements when both parties had the benefit of legal advice, as this reduces claims of misunderstanding or unfairness.
When one party is not represented by counsel, courts scrutinize the agreement more carefully and may find it unenforceable if terms significantly favor the represented party. At minimum, the unrepresented party should sign an acknowledgment stating they were advised to seek independent counsel and knowingly declined. Even this acknowledgment may not save an egregiously unfair agreement, but it helps demonstrate the party had opportunity to protect their interests.
Procedural Fairness
The process by which a prenuptial agreement is created matters as much as its content. Courts examine whether both parties had meaningful opportunity to participate in negotiations, propose changes, and have their concerns addressed. A take-it-or-leave-it approach where one party drafts the entire agreement and refuses any modifications raises red flags about whether genuine negotiation occurred.
Documentation of the negotiation process can help establish procedural fairness. Emails exchanging drafts, records of meetings where terms were discussed, and revisions showing how the agreement evolved all demonstrate that both parties actively participated. This evidence becomes valuable if the agreement is later challenged in court.
Substantive Fairness
While parties have significant freedom to structure their financial arrangements, courts may refuse to enforce agreements that are unconscionable or grossly unfair. An agreement that leaves one spouse destitute while the other retains substantial wealth may be found unconscionable, particularly if circumstances changed dramatically during the marriage or if the disadvantaged spouse sacrificed career opportunities for the family.
Courts examine fairness at two points: when the agreement was signed and when enforcement is sought. An agreement that seemed fair at execution may become unconscionable if one spouse develops serious health problems, if the marriage lasted much longer than anticipated, or if other circumstances changed significantly. Some agreements include provisions addressing how changed circumstances will be handled.
Proper Execution Formalities
Prenuptial agreements must comply with state requirements for valid execution. Most states require the agreement to be in writing and signed by both parties. Some states require notarization or witnesses, and failure to comply with these formalities can invalidate an otherwise valid agreement. Understanding and following your state's specific requirements is essential.
Both parties should sign the agreement well in advance of the wedding, ideally at least thirty days prior. The agreement should clearly identify both parties, state that it is a prenuptial agreement, and be executed with appropriate formalities. Keeping the original in a safe location and providing copies to both parties and their attorneys ensures the document can be located when needed.
Avoiding Common Pitfalls
Certain mistakes frequently lead to unenforceable prenuptial agreements. Using a single attorney to represent both parties creates conflicts of interest and may result in later claims of inadequate representation. Failing to update the agreement after major life changes such as birth of children, significant changes in wealth, or career transitions can create arguments that terms are no longer appropriate.
Including unenforceable provisions like predetermined child custody arrangements or illegal terms can cause courts to view the entire agreement skeptically. While some courts will simply strike invalid provisions and enforce the rest, others may find that the invalid terms so pervade the agreement that the whole document must be rejected. Working with experienced legal counsel helps avoid these common mistakes.
Strengthening Enforceability
Several practices help maximize the likelihood that a prenuptial agreement will be enforced. Starting the process early allows adequate time for negotiation and review. Using separate attorneys for each party demonstrates that both received independent advice. Complete financial disclosure with detailed documentation prevents claims of hidden assets.
Fair and balanced terms that provide some benefit to both parties are more likely to survive judicial review than one-sided arrangements. Including provisions for what happens if circumstances change significantly shows thoughtful planning. Following all execution formalities required by state law ensures technical compliance. Taking these steps creates an agreement positioned to accomplish its purposes if ever tested in court.