Many Texas couples, especially those entering a second or third marriage, decide to sign a prenuptial agreement. These agreements are generally intended to solve issues of asset division and child care if both spouses have children from prior marriages. While the idea of a prenuptial agreement is not especially romantic, many experienced family lawyers advise their clients to sign such agreements.
Sometimes, however, even the most carefully drafted or thoroughly negotiated prenuptial agreements can impose unbearable burdens on one of the spouses. When this happens, a common question is whether the prenuptial agreement can be declared unenforceable. The answer is “sometimes,” but the circumstances vary. This post will provide a summary of the facts and arguments that can convince a judge to declare the agreement to be unenforceable.
The basics
A prenuptial agreement is a contract and is subject to the same laws as contracts. The state legislature has, however, added some special provisions. The agreement must be signed by both parties before the wedding. Oral “prenups,” as they are sometimes called, are not enforceable. Another pre-wedding requirement is that both parties must have the opportunity to retain an independent attorney to review the agreement and provide advice on its suitability. A prenup cannot be enforced against a person who has been denied this opportunity.
Duress
In some situations, one party will have a greater interest in obtaining a signed prenup. To accomplish this end, the party seeking the prenup may use duress to coerce the other party into signing the agreement. The duress may consist of a threat to cancel the wedding or to convey or to take some other action that is deemed harmful by the person who is the object of the coercion.
Fraud
A prenup may be voided all or in party if one party made a false representation of a material fact to the other party. The misrepresentation may concern one party’s health, ownership of assets, the amount of accumulated debt, or similar facts that could sway a person into signing the prenup.
Unconscionability
If the prenup contains one or more extremely unfair provisions, those provisions or the entire agreement may be declared invalid by a judge. Theses provisions may affect child support or spousal support, ownership of various assets, or similar matters. Extreme unfairness may lead to invalidating the prenup even if the term was contained in a draft reviewed by a lawyer hired by the party against whom enforcement is requested.
Agreement of the parties
Perhaps the easiest way to break a prenup is by the mutual agreement of the parties. The agreement to break the prenup must be in writing and signed by both parties. Both parties should make certain that the agreement is reviewed by a lawyer of their choice in draft form before it is signed.
Both the choice to seek to attack a prenup and the method chosen for that attack merit review by an experienced divorce attorney.