Prenups and Enforceability

On sitcoms and soap operas, when the day before the big wedding arrives, a high-powered male will whip out a piece of paper – usually at the urging of his over-bearing mother – and demand that his wife-to-be sign a prenuptial agreement that will leave her penniless if she divorces him. In the real world, a prenuptial agreement such as the ones on TV comedies and dramas would be unenforceable.

A prenuptial agreement is a contract in which the spouses-to-be decide in advance what they will be entitled to in the event they divorce. While properly drafted prenuptial agreements can override some state laws regarding community property and equitable distribution of assets, certain requirements have to be met in order for the contract to be valid.

A prenuptial agreement must be in writing, in a format that is capable of being recorded in public record, and must be signed by both parties in front of a notary public. Thus, an oral agreement will not be enforceable if not written down.

The specifics of the written agreement must be entered into voluntarily and without any kind of coercion. This means that demanding a soon-to-be-spouse sign off on the dotted line the day before the wedding, such as the television example, will likely make the agreement unenforceable.

The parties must also fully reveal all of the property and assets they own, as well as all liabilities. A party cannot leave out $1 million of stock he owns and expect the prenuptial agreement to be enforceable if the couple divorces, nor can he expect his ex to pay off a debt he forgot to include in the agreement’s provisions.

The agreement itself must not be unconscionable, which means it cannot be unreasonable to either party. If a prenuptial agreement is overly unbalanced – such as in the example that leaves one spouse with everything and the other penniless – it may not be valid.

Each spouse should have his or her own attorney, and not rely upon one lawyer to protect the interest of both parties. For those who believe prenuptial agreements are not romantic, consider how much less romantic it would be to spend months or years draining bank accounts and acrimoniously fighting in court to divide up the assets, determine alimony and decide who gets to keep the house. While many think prenuptial agreements are only for the wealthy, everyone should have a plan in case the marriage does not work out.