3 Reasons Why Your Prenup May Be Invalid

A prenuptial or prenup agreement can provide a married couple extra reassurance, trust, and security – both financially and personally. Essentially it’s a legal contract stipulating how the assets you bring to the marriage and contribute to it are managed, in the event of a divorce. A good prenup can also help to protect you from liability related to the debts of your spouse if you get divorced. But like any legal document, if it is not executed properly, it can be ruled invalid – which defeats the whole purpose. The following are just a few examples of how a prenup can be ruled invalid, highlighting the importance of consulting an attorney to ensure that your prenup is valid and will stand up in court.

3 Reasons Your Prenup May Be Invalid

  1. Verbal Agreements Don’t Hold Up

    If your prenup was only a verbal agreement but never written down and signed by both parties, it wouldn’t be valid. That is true in every state in the USA. The same goes for prenuptial agreements that were not signed before you got married. Any changes to the document after it’s signed by both parties will also void the prenup. If you decide to make changes you need to draw up a new agreement and have both parties sign it, instead of trying to edit the previous agreement. Some states require a waiting period between the creation of the written document and when it’s signed. State law may also require that both parties be accompanied by their lawyers when at the time they sign the agreement. It’s best to have a qualified attorney write the prenup based on your mutually agreed goals and wishes.

  2. Was Fraud Involved?

    It is common for prenuptial agreements to describe how assets like money, stocks, bonds, and property will be divided in the event of a divorce. But if a judge discovers that there was any fraud involved when describing and listing your assets and their values, the prenup will be invalid. For example, it will be deemed fraudulent if you state that assets are worth less than you know they actually are, or if you fail to transparently list all of your assets in an attempt to hide them from your partner. Another example of fraud in a prenup is misrepresenting your net worth as less than it really is. Fraudulent deception also includes attempts to conceal assets by doing such things as moving them overseas so they won’t be easily found, or holding them in secret accounts so your spouse won’t know they exist.

  3. Other Disqualifiers

    If the prenup includes clauses regarding such things as who does the housework or how much a spouse must show affection and pay attention to the other person’s needs, a judge will reject it. Prenups cannot favor one person over another in an unfair and inequitable way. Neither can they include arrangements for custody, care, and support of children if you divorce. The court will always do what it deems is best for your children and their well-being, based on current circumstances at the time of your divorce. Nobody can force you to enter into a prenup agreement through threats or intimidation, either. It will be rejected if the court finds that one of you signed the prenup while under duress and against their free will.

These examples of invalid prenups underscore the value of having yours drawn-up by a qualified and experienced attorney. They will ensure it's rock solid and won't be deemed unenforceable someday because it's not legit. Even if you have an existing prenup, it’s important that you have a qualified attorney review it, to make sure it was done properly and will provide you the benefits you expect from it.


Naomi Schanfield

Naomi Schanfield concentrates on all aspects of matrimonial and family law, including, prenuptial and postnuptial agreements, divorce, equitable distribution, child custody and visitation, support matters, family offense disputes, and domestic violence.

To connect with Naomi: 212.682.6222 | Online

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