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Can an unfair prenuptial agreement be invalidated?

A prenuptial agreement focuses primarily on financial issues. For example, the contract may define each spouse's separate assets and clarify existing estate planning instruments. Similarly, individual debts can also be expressly excluded from the marital estate.  

Yet a prenuptial agreement, even if executed, is not necessarily infallible. There are circumstances where a court might determine a prenuptial agreement to be invalid. As in contract law, certain general principles apply. For starters, this type of contract must be in writing and signed by both parties. It should have also been entered into knowingly and by each spouse's free will. If executed under duress or without time for careful reading and review, a court might not uphold the agreement in the event of a divorce. 

A prenuptial agreement also requires honest disclosures. If it contains false or incomplete information, a court may deem it invalid. Similarly, a prenuptial agreement cannot usurp applicable law, such as child custody obligations. Finally, a contract that is grossly unfair on its face will draw close scrutiny from a court. An arrangement that subjects one spouse to severe financial hardship could likely be invalidated. Our family law firm advises clients considering a prenuptial agreement to obtain separate counsel. 

There are also asset preservation strategies related to prenuptial agreements that a couple might consider before marriage. In the interest of protecting business assets, an individual may wish to create an LLC or other type of corporate entity that can lawfully hold assets on its own, separate and apart from the marital estate.

Source: FindLaw, "Top 10 Reasons a Premarital Agreement May be Invalid," copyright 2016, Thomson Reuters

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