Download - Can a Premarital Agreement Ever Be Invalid?
CAN A PREMARITAL AGREEMENT EVER BE INVALID?A Guide to Problems with Premarital Agreements
A Premarital Agreement Is A Contract
Premarital agreements are contracts entered into by a husband and a wife in consideration of marriage
The premarital agreement must be written, as oral agreements are not
going to be enforced by a court
You must follow all rules for drafting a premarital agreement and contract in your state for the
premarital agreement to be considered valid
If there is a problem in the creation or the terms of the premarital agreement, it can
be declared invalid
Premarital Agreements Can Be Invalidated in Whole or in Part
If a couple is divorcing and one spouse believes the premarital
agreement should not be enforced, he or she can raise arguments to
the court explaining why the premarital agreement should be
invalidated
The court can invalidate or refuse to enforce certain provisions of the contract, such as when there is a
problem with just one clause or part
The court can also invalidate the entire agreement if there is a problem in the creation
of the contract
A Premarital Agreement Can be Invalidated Due to Fraud
Both parties must enter into the premarital agreement knowing the material facts
If one spouse hid information about assets, income or other
relevant issues, then the premarital agreement can be
invalidated as a result of fraud
If one spouse lied or was dishonest, the agreement can also
be invalidated due to the fraud
A Premarital Agreement Can Be Invalidated if it Was Signed Under
Duress
Each spouse must voluntarily enter into the premarital agreement
of his or her own free will
If one spouse felt forced or coerced into signing the agreement, the agreement can be invalidated
Presenting the agreement with limited time to review,
or with threats that the imminent marriage will be called off if not signed, can all be considered
examples of duress
A Premarital Agreement Can Be Invalidated if the Terms are
Unconscionable
If the terms of the premarital agreement are grossly one-sided
and unfair, the premarital agreement can be invalidated under certain circumstances
A premarital agreement is most likely to be invalidated
because it is unconscionable if one party had all of the power in
the drafting and signing of the agreement and the terms are skewed heavily in that
person’s favor
Both parties should be represented by their own attorneys in the writing of the agreement to ensure their rights are protected
and the terms are fair
Provisions (or the whole agreement) Can Be Invalidated If The Provisions
Are Against Public Policy
A court will not enforce a contract that goes against public policy
For example, provisions of a premarital agreement in which one
spouse waives child support are void
These provisions will not be enforced because children deserve
to be supported by both of their parents. One parent cannot waive
this right on behalf of a child
Provisions Can Be Invalidated if They Are Ridiculous and/or Difficult For the
Court to Enforce
The court will not enforce certain provisions of premarital agreements
if doing so would be difficult or ridiculous
For example, if the agreement contains clauses related to how often your in-laws are allowed to visit or as to how often you must engage in marital relations, the
court is not likely to enforce these contractual provisions
Agreements Can Be Invalidated if They Are Poorly Drafted
If the contract does not comply with all requirements for a premarital
agreement in your state, the court will not enforce it
If the contract provisions are vague or poorly written and
the court cannot interpret the contract accurately, the court may
not enforce the unclear terms
An Attorney Can Help
An attorney should be consulted when drafting a
premarital agreement to ensure it is enforceable
If there is a dispute over whether an agreement is valid and enforceable
during the divorce process, both parties should be represented by a lawyer who can help them to make arguments for their position to the
court
We invite you to contact us at (925) 314-2320 to
schedule a consultation
Click to visit: www.FamilyLawGroup.comContent provided by Best Legal Practices