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