In recent news, a Long Island woman had the prenuptial agreement between herself and her millionaire husband revoked. This has created more controversy regarding the validity of a prenuptial agreement and how well it protects your separate property and separate wealth post-divorce. Prenups used to be considered very difficult to void but things seem to be changing drastically in that regard. More courts are finding prenups to be invalid or unfair to the lessor-earning spouse, giving a judge full leeway to deny or alter the terms of such agreements.
There are five primary conditions wherein a judge can revoke a prenuptial agreement:
1. The agreement is fraudulent: if the judge finds that assets were misrepresented within the prenuptial agreement, the judge can deny it, based on the fact that the other party wasn’t fully aware of the true financial picture. It’s commonplace for one partner to withhold financial information from a spouse when creating a prenup, but less people are getting away with it according to more recent developments within the legal system.
2. The agreement was coerced, signed under duress or pressure, or signed by someone lacking the mental capacity to fully understand the repercussions of their actions: This is one of the more difficult ways to have a prenup denied because it’s difficult to prove that someone coerced you into signing something. It might be easier to prove that your spouse had you sign the prenup while you were mentally incapacitated or unstable (i.e., while under the influence of drugs or while suffering from an illness).
3. Errors in the paperwork: If a prenup is poorly put together with many errors or miss-wordings, it can be considered legally unenforceable and therefore thrown out by a judge.
4. The prenup was signed without proper legal representation: If the prenup was signed and one or both parties did not have their own lawyer present, the prenup can be considered invalid and denied by a judge. For instance, if the higher earning spouse hires a law firm to represent both himself and his spouse-to-be, then later files for a divorce, a judge could decide that the lower-earning spouse did not have fair legal representation and can decide to deny the prenup in its entirety.
5. The agreement is obviously unfair or lopsided: Major issues that would draw the attention of a judge, such as a statement that would leave one spouse nearly penniless, would probably create concern and lead a judge to either throw out or revise the provisions within the prenup.
Whether you are in the process of getting a divorce or considering marrying someone with the implementation of a prenup, it’s best to get financial advice from your own legal counsel, separate from that of your spouse. Although it’s easier to have a prenup voided than it used to be, you should not rely on that because not every judge will consider denying a signed document such as this. Also, you should gain legal help when devising a prenup so that you are ensured protection of your own assets upon getting a divorce in the future.