Think your prenup is set in stone, and you’ve got a sure thing in the event of a divorce? Not so fast. Prenups aren’t absolute. There are several bad moves you can make which can invalidate them altogether.
Pay close attention, because once a judge throws out your prenup you’ll enter the divorce process as usual, rather than the neater, cleaner process the prenup was supposed to guarantee.
#1) One spouse signed the prenup under duress.
The old story of the less financially well-off spouse getting pressured into signing a prenup is a cliche because it happens. A lot.
To avoid accusations of duress, both parties should sign the agreement no later than six months prior to the wedding date. Why does the wedding date matter? Because the amount of time and money that goes into a wedding can create a lot of pressure not to do anything which might cancel it. The embarrassment and social censure a cancelled wedding might cause can be powerful motivators as well. If your spouse is an immigrant, there may be deportation concerns to contend with.
And don’t drink and sign; if either party was under the influence at the time of signing it also counts as a form of duress.
#2) The prenup is too one-sided.
When you agree to marry someone you are agreeing to share assets in common. It’s fine to use the prenup to protect existing nonmarital inheritances, assets, or intellectual property.
It’s not fine to have one spouse to agree, say, to a 70%/30% of marital property, or to offer a parsimonious amount of spousal support when you know you and your spouse have already agreed that one will be serving as “house spouse.”
“One sided” can be a bit subjective of course, but for the most part, you both should be working hard to make sure it’s as fair as possible.
See also: How to Discuss Your Prenup the Right Way.
#3) The prenup is full of unenforceable clauses.
You can’t create “lifestyle” clauses in a prenup. People have tried. But trying to force your spouse to maintain a certain weight in exchange for having rights to marital property isn’t going to fly. Your spouse will have some rights on marital property, period, and a prenup can’t tell your spouse how to live.
You can’t even add an infidelity clause. Infidelity has no bearing on the division of property, on spousal support, on child custody, or on child support. The sole exception is if your spouse spent a great deal of his or her marital assets on the paramour, and you can’t know that is going to happen when the prenup is being drafted. If it wouldn’t be possible in a divorce, it’s not possible in a prenup.
See also: Here’s How You Know You Need a Prenup.
#4) One or both parties committed fraud.
Failed to disclose assets when the prenup was signed? Then you’ve committed fraud, and the prenup is null and void. A judge is likely to treat it just like he or she would treat an attempt to hide assets during the divorce.
If you’re going to have a prenup you must be fair, open, and honest about everything you possess. Period.
If you’re at the divorce stage and you think your spouse committed prenup fraud, talk to your lawyer right away. It’s one thing to know your spouse failed to disclose assets. It’s another to prove it.
#5) One or both parties did not have a lawyer at the time of signing.
So while it is possible you can get an enforceable prenup without lawyers, it’s highly unlikely. You run a great risk that the agreement will be thrown out. It doesn’t cost much to have a lawyer look over an agreement like this, so make sure both parties are fairly represented.