Can prenuptial agreements contain improper provisions?

Can prenuptial agreements contain improper provisions?

| Apr 24, 2020 | Firm News |

Composing a prenuptial agreement can do a lot to help protect your personal assets and to provide for any children you may have from prior relationships. However, sometimes couples draft prenuptial contracts with invalid provisions. If you are not careful, you could compose a prenup that a judge might rule as unenforceable.

As Forbes explains, couples commonly make mistakes while drafting a prenup, which can result in a prenuptial agreement containing terms that a judge may consider invalid under law. Knowing what to watch out for as you compose your prenup may save you from a rocky road later when a judge decides not to enforce your compact.

Invalid terms

A prenuptial agreement cannot contain provisions that violate law or public policy. Child support, for example, is an area governed by law and the courts. You cannot waive child support in a prenuptial agreement. Also, you cannot fashion an agreement that leaves you financially well off while depriving your spouse of so many assets that it leaves your spouse destitute. Courts generally look out for agreements they deem unconscionable and will likely rule them unenforceable.

Coercion

You probably cannot imagine signing an agreement that would leave you with few assets if you divorce. Yet sometimes one spouse will coerce another to sign a prenuptial agreement quickly, perhaps by presenting an agreement very close to the time of the wedding. The other spouse may not have time to read the agreement over and will just sign it quickly to get it over with.

A judge might also throw out your agreement if you do not have legal counsel to assist you while drafting the prenup. A failure to retain an attorney may cause a judge to feel concerned that you did not have adequate representation of your interests. Some judges throw out prenuptial agreements on this basis.

Omissions

Also remember that sometimes it is not about what you put into a prenuptial agreement, but what you do not include that may invalidate the accord. Prenuptial agreements should include accurate financial information from each spouse, including a listing of assets. Omitting financial information from a prenup could cause a judge to conclude that you wanted to skew the agreement in your favor. The judge may then decide not to enforce the agreement.