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10 Things to Keep in Mind About Prenuptial Agreements: Can They Be Invalidated?

10 Things to Keep in Mind About Prenuptial Agreements: Can They Be Invalidated?

Some couples sign a prenuptial agreement before marriage. However, this doesn’t mean the document remains valid if the marriage fails. Certain circumstances allow the court to invalidate the document when specific conditions are met. The following serve examples of when this document becomes null and void.


When one party to a prenuptial agreement commits fraud, the document becomes invalid. Elizabeth Petrakis filed a suit in court based on these grounds and won against her millionaire husband. He told her they would tear up the agreement once they had children together. He failed to comply when the children were born, and this gave her grounds to file a suit in court when they divorced. Anyone who signed a prenup only to have the other party commit fraud at a later date should seek the services of a family law attorney.

Timing of the Agreement

Prenuptial agreements cannot be signed too close to the wedding ceremony. When one is, the court assumes one party was coerced into signing the document. A failure to do so would lead to the cancellation of the wedding. In addition, the agreement must be signed before the wedding takes place. Couples sign a different document if both parties enter an agreement after the wedding ceremony has taken place. The court wants confirmation that both parties consented to the agreement and undue influence isn’t a concern.

Grossly Unfair

Judges tend to invalidate prenuptial agreements that are grossly unfair when one spouse challenges the document in court. For instance, a document that demands one spouse give everything they own to the other would be considered unjust. Additionally, unreasonable demands, such as a clause that states one partner cannot gain weight, are deemed to be grossly unfair by the court. The court determines whether one party would experience severe financial hardship due to the agreement while the other spouse prospers when deciding if an agreement is grossly unfair or unconscionable. A prenuptial agreement falls into the unconscionable contract category in this situation, and documents of this type are generally invalid in the eyes of the court.

Clauses That Are Illegal

Improper clauses can be removed from a prenuptial agreement even when other parts of the document remain in force. Clauses involving child support and child custody serve as two examples of illegal parts of the document. Child support payments cannot be waived in a prenuptial agreement under current law. Clauses of this type generally involve child custody or support issues, although the court may determine other clauses are invalid as well.

A Lack of Mental Capacity

Both parties must understand what they are agreeing to before signing the prenuptial agreement. When there is a question as to whether each party had the capacity to sign the document, the court determines whether the agreement will remain in force. A lack of understanding on the part of one spouse when signing the document leads to many courts refusing to enforce the clauses of the agreement.

Improper Filing

Employees of the court make mistakes, as do attorneys at times. If the prenuptial agreement was not filed properly, one or both parties may ask to have the document declared null and void. While this isn’t a common reason for having a prenup thrown out, it is something that should be looked into, especially when all other methods have failed.

A Change in Circumstances

When reviewing a prenuptial agreement to determine if it should be enforced, courts take into consideration changes in circumstances. What exactly does this mean? Imagine a scenario in which Melinda Gates signed a prenuptial agreement before marrying Bill Gates. Neither knew at the time that he would create the next big thing and become one of the richest men in the world. If Melinda Gates signed a document giving away any rights to spousal support, the court may decide that it is no longer fair. She stood by him while he was creating his invention and stayed with him for decades after and is entitled to some of what he earned as a result. Although this is not what actually happened between the couple, it demonstrates how a change of circumstances could impact the validity of a prenuptial agreement.

False or Incomplete Information

Both parties must engage in full disclosure before a prenuptial agreement is signed. If one party hides assets, lies about them, or underreports liabilities, this potentially makes the prenuptial agreement invalid. Both parties must share all information at the time of the document signing for it to remain valid. This may require both parties to present financial documents before signing the agreement, or one party may ask for other documents to get a fair picture of the other person’s financial situation before entering into the agreement.

Separate Legal Counsel

Each party to a prenuptial agreement needs to have an attorney review the document. The same lawyer should not be used by both spouses. If one spouse does not obtain legal guidance before agreeing to the contents of the agreement and the state requires legal counsel for both parties, the document is invalidated. The exception to this is when one spouse signed a waiver of counsel with full consent.

Verbal Agreements

Verbal agreements aren’t considered legal and valid prenuptial agreements. In order for the document to be considered valid, it must be presented in writing. Writing down the conditions of the agreement isn’t enough either. If one or both parties fail to sign the agreement, it will be thrown out of court in most cases. For this reason, both parties must ensure they sign this document and retain a copy for their own records. This ensures the document can be produced for the court to review and rule on its validity and legality.

If you signed a prenuptial agreement and now question its validity, speak to an attorney today. They review the document and advise you on whether to proceed with trying to have the agreement dismissed in whole or parts. While this doesn’t happen very often, it never hurts to ask. You may be surprised to find that the document you signed and thought would be completely enforceable isn’t.

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