JUST BECAUSE YOU HAVE A PRENUP DOESN’T MEAN IT’S VALID
Feb. 1, 2019
Financial disputes can break up a marriage and can continue well into the divorce proceedings. This can make an already emotional time especially difficult. One way to avoid such an outcome is through executing a prenuptial agreement that addresses property division and spousal support. However, under certain circumstances, a prenup executed before the marriage in Colorado may be unenforceable in the event of a divorce.
Hiding assets could make a prenup fraudulent. Each party is obligated to disclose the full extent of their assets when negotiating the prenup. This is to ensure that each party knows exactly what is at stake and ensure the final prenup is fair and appropriate. A fraudulent prenup may not be enforceable in the event of a divorce.
Another way a prenup could be unenforceable is if it was signed under coercion or duress. These concepts are difficult to prove, and the requirements for proving coercion or duress vary by state. For example, in some cases, a prenup that was signed the day before the wedding may be considered invalid if it can be shown that the parties did not have time to fully read and understand the document.
Prenups that are signed by a person who does not have the mental capacity to understand what they are doing may also be unenforceable. For example, if a person is drunk when they executed the prenup, the agreement may not be valid, as an intoxicated person does not have the capacity to understand what they are doing.
In addition, generally, both parties to a prenup need to be represented by their own separate family law attorney. This is to ensure that each party understands the legalities of what they are agreeing to. An attorney can also ensure the final agreement is not so one-sided as to be unconscionable — another reason to invalidate a prenup.
This is only a brief overview of what makes a prenup invalid; there may be other reasons under state law. While the specific contents of the prenup may differ greatly from couple to couple, how the document is executed could make or break whether it will be enforced if the couple’s marriage ends in divorce. Executing a prenuptial agreement is a good idea for most couples, but it is important to ensure that the document is negotiated properly. An invalid prenup is useless, so those interested in executing one need to make sure they understand what is necessary before proceeding.