Prenups and Postnups: How Far Do They Extend?

Prenuptial and postnuptial agreements have become incredibly common. Both are preemptive ways of specifying what happens to property and assets in the event spouses divorce. While most prenups and postnups are created out of mutual respect between the parties, there are some circumstances in which they are they are not created in a manner that is fair to both parties. In these situations, courts will sometimes invalidate the prenup or postnup out of concern for the well-being of the spouse who was placed at a significant disadvantage when they signed the document. What are these circumstances, and what should you know before getting a prenup or postnup?

First, it is important to note that prenups and postnups are, essentially, contracts. This means that they must be written, signed, and be signed in the presence of witnesses. Like all contracts, however, if they were created or signed and coercion or deception was involved, a court may step in and invalidate this contract. Just because it is signed and in writing does not mean there is no way it can be changed, especially if a court believes the terms are unfair or unconscionable.

What are some of the circumstances that might lead a court to believe the terms are unfair or unconscionable? Here are some of the most common circumstances:

• When the prenup or postnup was signed, one or both of the parties were not represented by an independent attorney acting in their best interests.
• When the prenup or postnup was signed, one or both of the parties did not accurately or fully disclose the entirety of their financial situation, such as the extent of their assets or debts.
• When the prenup or postnup was signed, one or both of the parties was forced to sign it or lacked the necessary mental capacity to sign it.
• Prior to signing the prenup or postnup, one or both of the parties had a very limited amount of time to think about it, such that they were rushed into making a decision to sign.

Further, prenups and postnups can only specify agreements about financial matters in the event the couple separates, and cannot deal with family matters like how much time a partner can spend with friends or family; physical arrangements such as the frequency of sex or ability to have sex outside of the marriage; one partner getting or keeping employment; or arrangements concerning who will take care of certain chores or tasks at home. All of these topics must be discussed and settled outside of the court. If a prenup or postnup does contain these provisions, a spouse can appeal this particular clause of the agreement as being invalid.

Further, it is also important to note that prenups and postnups may be declared invalid if they encourage spouses to divorce or separate. They may also be declared invalid if it contains a provision that is contrary to law, such as encouraging one spouse to not disclose income on tax returns or discouraging a spouse from reporting abuse.

If you need or have questions about your pre or postnup agreement, the experienced family law attorneys at Blair H. Chan, III, PLLC, can help! Contact us today to learn more.