How easy is it to invalidate a prenup?
Just because a prenuptial agreement is in place doesn't necessarily mean that it can't be tossed out in court. It doesn't happen often, but it's possible.
Case in point: A Brooklyn judge in February decided to invalidate a prenuptial agreement between Elizabeth Petrakis and her millionaire husband. Why?
Her prenup was invalidated on the grounds that it was induced under fraud. Petrakis' husband had told her that he would tear up the prenup, which she'd initially refused to sign, once the couple had kids. But he never did, The New York Post reports.
Fraud is only one ground to invalidate a prenup. Here are four other ways a prenuptial agreement can be invalidated:
- If it's done too close to the wedding. Prenuptial agreements that are signed too close to the wedding may come with a presumption of coercion. Basically, a judge assumes that with the impending wedding date, the signing party was pressured into signing the prenup rather than risk canceling the nuptials.
- Having a prenup that's unfair. If there are clauses in the prenup that are grossly unfair, then the prenup could be invalidated. Some examples of unfairness involve one spouse giving everything they own to the other spouse. Unreasonable demands can also be deemed unfair, such as demands that one spouse doesn't gain weight.
- Having illegal clauses. While the entire prenup might not be invalidated if there exist improper clauses, those clauses themselves can be invalidated. One of these types of clauses involves child custody, which typically can't be included in prenups. Same goes for a waiver of child support payments.
- Not having a lawyer review the prenup. Both sides should consult separate lawyers before agreeing to a prenup. If the signing spouse doesn't have a lawyer, and your state requires both spouses to be represented by counsel, then the prenup could potentially be invalidated, unless the spouse has also signed a waiver of counsel. That waiver should be signed with full informed consent.
- Top 10 Reasons a Premarital Agreement May be Invalid (FindLaw)
- The FindLaw Guide to Prenuptial Agreements (FindLaw)
- Can Prenuptial Agreements Help You? (FindLaw)
- 7 Common Prenup Mistakes You'll Want to Avoid (FindLaw's Law and Daily Life)