A prenuptial agreement is a contract between a husband and wife before marriage that sets out the property rights of the parties and which becomes effective upon their marriage.
The property affected includes any interest in real or personal property, including income and earnings and any future interest in property. The agreement must be in writing and signed by both parties.
There are circumstances that would render the prenuptial agreement unenforceable, including the following:
1. The agreement was not entered into voluntarily or was done so under duress, fraud or while under the influence.
2. The agreement is unconscionable if the following applies:• a. One party did not completely and reasonably disclose all of his or her property or tried to hide it and, • b. The complaining party could not have had an adequate knowledge of the other’s property or debts, and, • c. The aggrieved party did not intend to waive in writing his or her right to disclosure of the other party’s property or debts.
Child support payments should be unaffected by a prenuptial agreement if it adversely affects the amounts to be paid.
If found unconscionable, the entire agreement could be voided or the offending provisions invalidated.
If the agreement has a provision regarding spousal support, the aggrieved party for whom the provision is directed must have had an independent attorney represent him or her when the agreement was signed. Also, the provision may be deemed unconscionable and unenforceable when enforced regardless if independent counsel was involved.
An exception to having an independent attorney represent the aggrieved party is the following circumstance:
The party was totally informed as to his or her rights and obligations being surrendered.
The party spoke or could sufficiently read in the language of the agreement. An explanation of these rights and obligations were given in writing and were delivered and attested to by that party who acknowledges that it was received, and that it states from whom this information was received.
The party who is waiving his or her rights must have 7 days to read and consider the agreement before signing it.
A court may invalidate portions of an agreement it considers unfair to either party, which includes a drastic and unexpected change in circumstances at the time of divorce. Also, the agreement cannot conflict with or offend public policy. For example, if one party is to receive a large sum of money upon divorce, that might contravene public policy as it appears to encourage divorce and presents no detriment to that party.