Invalidating Pre-Nuptial Agreements
Prenuptial agreements have historically been seen as something done by high net-worth individuals, those who own a business and those who are entering into a second marriage, as well as those with children. However, even with all the risks at stake, some prenuptial agreements are not as iron clad as they could be, and it’s in your best interest to get your prenuptial agreement reviewed by one of our experienced attorneys. They can help you figure out whether or not your agreement has validity, and whether or not it could be overthrown in a court of law. Pre-nups are on the rise, according to the American Academy of Matrimonial Lawyers (AAML). They say that 44% of their attorneys have seen a rise in prenuptial agreements over the last 5 years.
Is My Pre-nuptial Agreement Valid? Will Your Prenuptial Agreement Hold Up In A Court of Law?
Just like a marriage agreement, a prenuptial agreement must go through certain hoops in order to be considered legal and binding in the eyes of the court. Yet many people who enter into a pre-nup would be surprised to find that it may not, in the end, be valid. If you are headed towards divorce, and have questions about your pre-nup agreement, our experienced attorneys will go over with you, questioning anything that looks suspicious and making sure the outcome is in your best interest.
Invalidating your pre-nup will vary state-to-state. Our firm, one of the top divorce firms in New York, has the experienced attorneys you need to help you with your prenuptial agreement review. Here are 6 broad topics that may help to challenge and eventually invalidate a pre-nup.
- When Children Are Involved: For children born prior to the marriage, a prenuptial agreement can be a great tool to protect that child’s financial future. However, for children born from the current marriage, this does not apply. Even if the pre-nup states the custody and child support decisions made by both spouses, it will probably not even be looked at. Circumstances change in between when the pre-nup was drawn up and when the review of that pre-nup occurs, and the courts tend to rule in the best interest of the child, not what was written and agreed upon before they were born.
- Duress: Prenuptial agreements made under threat or duress can be considered grounds for invalidation. Both parties must enter into the prenuptial agreement freely and of their own volition, oftentimes both retaining their own council for advice. Pre-nups that are hastily drawn up can be seen as done under pressure, and this can in turn make them void. If you do agree to a pre-nup, it’s best to do it well in advance of the wedding so that each party has time to thoroughly read and agree to it. If you feel your pre-nup was made under pressure or threat, our attorneys can help establish the timeline of when it was drawn up relative to your vows, and help prove that you were not adequately prepared to sign the document.
- Financial Secrets: Prenuptial agreements are based on honesty, and that includes financial honesty. Both partners must disclose their incomes, assets and debts, as well as any other relative financial stakes. In doing so, each partner can make an informed decision of what they believe they are owed should divorce or death occur. Failing to do so can result in an invalid prenuptial agreement.
- Fairness: Other rather, unfairness, in a prenuptial agreement. Almost anything can be written into a prenuptial agreement, but it doesn’t necessarily mean it will be upheld in court, regardless if both partners signed it. For example, if one spouse earns significantly more than the other and they divorce, even if the pre-nup says the higher-earning spouse doesn’t owe spousal support to the other, the court may consider that as unfair and reverse or invalidate the pre-nup. In the state of New York, the prenup must be fair at both the time of signing and also at the dissolution of the marriage, meaning that if circumstances change by the time divorce rolls around, the pre-nup may change as well. While fairness can be a gray area, our attorneys are well-versed in New York’s statutes and will work for you to make sure you get most from your pre-nup, whether that means it’s kept intact or deemed invalid.
- Without Legal Representation: It is generally advised that each partner signing the prenuptial agreement have legal representation before signing. Otherwise, it can argued that the person signing without an attorney didn’t know what they were doing and wasn’t fully informed about the prenuptial agreement. We can provide you representation, giving you full disclosure of what your pre-nup says and what you agreeing to when you sign.
- Play By Your Own Rules: Sometimes, rules are laid out in a prenuptial agreement and the signers don’t follow them, meaning if there is a divorce, the prenuptial agreement can be invalidated even though each partner agreed to the terms from the beginning. For example, if one partner has a house that they want to keep in the event of a divorce, the prenuptial agreement can written so that all mortgage payments come from that partner’s personal bank account. But if, during the marriage, bank accounts become joint and the mortgage comes from the joint account (with co-mingled money), then, if a divorce occurs, the house could be seen as marital property and it may not end up with the person originally paying for it. If you set up and agree to the terms of prenuptial agreement, follow them.
As mentioned above, certain requirements must be met in order for a prenuptial agreement to be valid. If there is a failure for these requirements to be met, then the pre-nup itself may be deemed invalid. Our experienced attorneys will recognize and address any issues your prenuptial agreement may have, and whether these issues are pertinent. We have an aggressive strategy combined with personal individual attention, meaning you’ll get the best presentation possible. Call us today at 646-358-4976 to set a meeting.
