Is There A Way To Prevent A Prenup From Being Invalidated?

Posted on: 4 October 2017

It's not unusual for spouses who happily sign prenuptial agreements at the start of marriage to challenge the validity of those contracts when divorce proceedings have been initiated. If you had your soon-to-be ex-spouse sign a prenup to protect your money and assets, you may be wondering if it's possible to prevent the contract from being invalidated. It depends on the pretext your ex is using to challenge the prenup.

Incomplete Disclosure of Assets

One common way prenuptial agreements are invalidated is because one spouse failed to completely disclose all the assets he or she owns to the other spouse. Many people do this because they don't want to risk losing those assets if they get divorced or because they don't want the prenuptial agreement to appear unfair or lopsided (which can also lead to invalidation). If your spouse can adequately prove you purposefully failed to disclose money, property, or other things, the court may nullify the part of the prenup that addresses the division of assets or the entire contract altogether.

There are a couple of ways you may be able to defend against this. One way is to show you didn't come into the asset until after the prenuptial agreement was signed. For example, your grandmother passes away after the contract was signed and she left you a lot of money. The court may rule in your favor since you can't include an asset in a prenuptial agreement that you don't have; however, depending on when you received the asset, the court may question why you didn't update the agreement.

Another option is to show adding the asset wouldn't have changed the status quo between you and your spouse anyway. As noted previously, the court may invalidate the prenuptial agreement if it is unfair to your ex, i.e. the assets are not fairly distributed between you and the other party because of the incomplete disclosure. However, showing your spouse wouldn't have been entitled to the asset even if you had disclosed it may work in your favor.

For example, going back to the example of the inheritance, your spouse wouldn't have been entitled to any part of the money even if you were married when you received it because inheritances are considered separate property and not marital or community property.

Signed Under Duress

Another claim that people sometimes use to invalidate a prenuptial agreement is they were pressured to sign the document or did so under duress. Typically, this means one party exerted some type of improper pressure or influence over the other party to sign the contract. For instance, one party threatens to beat up the other party if he or she doesn't agree to sign the prenup.

However, duress can take many forms. For instance, threatening to call off the wedding if the prenup isn't signed has been accepted as a form of duress as has the act of making the person sign the documents at the last minute (e.g. right before the wedding starts).

The goal here is to show your spouse signed the documents of his or her own free will and while mentally competent. There are a couple of ways you can do this. Have anyone who witnessed the signing testify to your ex's state of mind when he or she signed the prenuptial agreement. Provide evidence you presented the paperwork to your ex a long time before the wedding was to take place. Submit any video or audio evidence supporting your claim your ex-spouse was mentally competent or see if your ex's attorney at the time will testify that he or she reviewed the contract with your ex before your ex signed it.

Preventing a prenuptial agreement from being invalidated can be challenging. Discuss the issue with a divorce attorney, such as Karen Robins Carnegie PLC, in your area.