You asked for a prenuptial agreement before you got married because you wanted to protect your assets and avoid a long, costly battle if the marriage ended. Your fiancé agreed, albeit reluctantly. Now the two of you are divorcing and they're trying to get the prenup nullified. Can they do that?
It's difficult, if you did everything right at the time. However, it's not necessarily impossible. Let's look at the most common challenges to prenups.
If one partner hid or undervalued their assets when the prenup was signed, that could be a problem. That's especially true if the other spouse can show that they were rushed into signing it and not given time to verify their partner's financial worth.
Coercion or duress
If a spouse can show that they were placed under enormous pressure from their partner, their future in-laws or others to sign the prenup, that can be grounds for having it overturned. Often, this involves a prenup that was already drawn up where the other person wasn't given a chance to have their attorney review it and recommend changes.
A person may feel obligated to sign if the wedding plans are well under way and the invitations have been sent. However, family pressure and social obligations may not be considered true coercion by a judge. The coercion needs to be “very extreme,” according to one attorney.
The terms are ‘'unconscionable''
A spouse might argue this if the prenup gives virtually everything to their spouse and little to them. However, since prenups are often drawn up because one person has significantly more assets going into the marriage than the other, this can be a tough argument to win in court. Further, if the prenup was drawn up by an experienced attorney, they would know how to avoid having truly “unconscionable” terms.
It's rare that an entire prenup is nullified in a divorce. If anything, one provision may be tossed out. Sometimes the spouse with more assets will negotiate a settlement with their soon-to-be ex to give them more than the prenup provides for in the interest of moving on.
If you're ending your marriage, one of the first things you should do after you retain an attorney is have them review your prenup. It will have a significant impact on the next steps in your divorce.
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