Three ways to mess up your prenup

Relationships, Divorce, Money

Let’s start with some good news: US divorce rates have declined markedly since 2000, according to data from the Centers for Disease Control. And in a new relationship study commissioned by Avvo, Millennials (respondents aged 18-34) said that marriage still matters. Forty-eight percent said marriage is still a life goal, and a full 90 percent believe relationships are meant to last.

And now for some bad: despite all of that data, hoping for the best and having life goals for marriage doesn’t change the fact that divorce is very much a reality.

Where there is divorce, there are also prenuptial agreements. These pre-marriage contracts purport to settle issues regarding any distribution of assets in the event of a divorce. And while that might seem pessimistic, a prenup can serve to insulate the relationship from undue concern over asset ownership.

But sometimes, the agreement isn’t up to the task. Many prenups fail to live up to the requirements of relevant state law, and end up causing more rancor, rather than less. Here are three common reasons why prenups are declared invalid.


As with all contracts and legal agreements, there is an implied requirement of good faith. That means that each side enters into the agreement with an honest representation of their positions. When it comes to a prenuptial agreement, good faith (and frankly, a good relationship) requires a true and honest accounting of all assets owned when entering the marriage.

The negotiation of the agreement will determine what happens to current and future holdings or earnings. Any failure to disclose or to properly list the value of an asset can be construed as fraud and can lead to a judge invalidating the entire agreement. Financial guru Suze Orman writes about this on her website: “Basically you need to be able to prove that both you and your partner fully understood the extent of each other’s assets and debts at the time you created the pre-nup.”


This one should be obvious. Courts are not going to look kindly on a prenuptial agreement that was signed as a result of undue pressure or influence. Coercion, which can be difficult to prove, invalidates a contract because it demonstrates that the agreement was not a true and accurate reflection of the individual parties’ intent.

A recent case in New York threw out a prenup based on evidence of an oral agreement between the parties. Elizabeth Petrakis was given a prenup to sign six weeks before the wedding. When she refused, her soon-to-be husband made a verbal deal with her. Petrakis alleged that he told her that after they had children, he would toss out the agreement. She signed; they got married, had kids, and then divorced—at which time, her now ex-husband sought to enforce the prenup. The New York Supreme Court found the wife’s testimony more credible and that “the defendant fraudulently induced the plaintiff to execute” the agreement.

The court acknowledged that the preference is to uphold private agreements, but that given the importance of “matrimonial proceedings” that “agreements addressing matrimonial issues” should have “limitations and scrutiny beyond that afforded contracts in general.”

Bottom line, courts want to encourage parties to have private agreements, but, at least in New York, they are going to take a very close look at the facts surrounding the agreement and the credibility of both former spouses.


A challenge to a prenup based on the concept of basic fairness or gross inequity may be one of the most complicated and a difficult to prove arguments. Just having an agreement that is more favorable to one party than the other is not going to be good enough to invalidate the agreement. A court is going to have to weigh lots of objective facts to make a determination about what is termed the “unconscionability” of the prenup.

Writing in the American Journal of Family Law, attorney Jill Heitler Blomberg of Schoonmaker, George & Colin examined the concept of unconscionability in relation to the Uniform Premarital Agreement Act,  a proposed statute developed by a national conference of attorneys working to provide uniformity in certain areas of state law.

As Blomberg writes, “Some states have held that a premarital agreement is unconscionable if there was a gross disparity in bargaining power which led the party with the lesser bargaining power to sign the contract unwillingly or unaware of its terms and the premarital agreement is one that no sensible person who was not under delusion, duress, or distress would accept.”

Basically, courts are going to look at all of the facts and circumstances surrounding the agreement. Did both spouses have their own attorney who could examine the agreement? Were the disclosures made in good faith? Are there clauses, such as weight gain parameters, requirements about sexual relations, or childbearing thresholds, which simply cannot withstand a challenge under basic fairness?

This is not to imply that a well thought-out and fairly negotiated prenuptial agreement is not a good idea, but rather to say that a bad or unfair agreement is not necessarily the end of the divorce discussion.

When it comes to prenups, experienced family law attorneys can help each party achieve its goals, either before the marriage or in the event of its dissolution. Moreover, prepaid legal services offer simple and affordable options for the soon-to-be wedded or divorced.