Enforcement
Courts routinely enforce prenuptial agreements if the parties executed the agreement voluntarily and knowingly. Just like any other contract, the agreement is presumed to be legally executed and valid unless proved otherwise. The agreement may be unfair and unreasonable as to one party, but it will be enforced unless fraud, duress or undue influence is shown.
SIDEBAR: The agreement is likely to not be enforced if it is so unfair as to make one spouse destitute.
Can the prenuptial agreement be enforced against me if I did not talk to a lawyer before signing it?
Yes. Hiring an attorney to review the agreement is not necessary (although highly recommended). The agreement will be enforced if a reasonably intelligent adult could understand the terms of the agreement and had an opportunity to consult with a lawyer.
SIDEBAR: For example, if one of the couple has the agreement several weeks or days before signing, she has had the opportunity to talk with an attorney. The person's choice to forego legal advice will not make the agreement unenforceable against her.
TIP: Choosing to purposefully forego consulting with an attorney in order to argue later that the prenuptial agreement cannot be enforced against you will not work in your favor.
Is the prenuptial agreement I signed on our wedding day enforceable?
Not if it was the first time you saw or heard of it. In that case, you did not have an opportunity to consult with an attorney. Further, you were placed in a position where you signed the agreement unknowingly, involuntarily and under duress.
An attorney advised me before I signed our prenuptial agreement. Can I still challenge the agreement in court?
Yes. If you executed the agreement under duress, the agreement may not be enforceable against you. For example, if your attorney advised you to make some changes to the agreement and on the day of the wedding your husband refused and threatened to cancel the wedding, you can argue that you signed under duress.
TIP: Courts routinely enforce agreements signed immediately prior to the wedding where the person is educated, experienced and reasonably intelligent yet failed to take their attorney's advice.
SIDEBAR: A prenuptial agreement will not be enforced if the attorney for one of the parties was not acting in his client's best interest. For instance, if the attorney failed to fully explain the agreement, especially where the provisions are heavily tilted toward the husband's interest, the court may not enforce it.
When I signed my prenuptial agreement, I was employed, and I agreed to a certain amount of support payments. Now that I am out of work due to a disability do I still have to pay that amount?
No. An agreement will not be enforced where the circumstances of one or both of the parties have drastically changed.
I signed a prenuptial agreement in which I waived support payments because my wife's financial statement showed no assets even though she owned valuable stocks. Can my agreement to forego support payments be enforced?
No. Your wife misrepresented and concealed her true financial situation. The agreement will not be enforced against you.
SIDEBAR: Misrepresentation and concealment of relevant facts (fraud) concerning one of the party's finances is a major reason courts refuse to enforce a prenuptial agreement.
I signed a prenuptial agreement when we married 10 years ago. Now that we are divorcing, I have discovered that my wife concealed her true financial worth. Can I allege fraud to make the agreement unenforceable?
Probably not. The agreement is a contract, and certain allegations must be brought within a specified time to successfully challenge it.
TIP: Statutes of limitations apply to prenuptial agreements. Thus, allegations that fraud, duress or undue influence were present at the time you entered into a prenuptial agreement must be brought within a certain time period. For example, in a state with a 6-year statute of limitations on fraud actions based on a contract, a husband cannot complain of fraud 10 years after the marriage occurred. However, many states have adopted laws that begin the time period for making allegations of fraud, etc. when the parties separate, rather than beginning it on the date they were married.
We have been married for 10 years and have two small children. Is our prenuptial agreement giving me $100 support per month for a year enforceable now that we are getting divorced?
No. Not only have the circumstances changed (you now have two children), the agreement is unconscionable. The court will not enforce an agreement, i.e., include it as part of the divorce decree, if it is grossly unfair and unequal.
TIP: There is no statute of limitations on alleging unconscionability.
My husband was unfaithful and filed for divorce. Do I still have to pay him the $10,000 that I agreed to in our prenuptial agreement?
Yes. Typically, infidelity does not change the circumstances so as to make the prenuptial agreement unenforceable.
Can a prenuptial agreement be enforced after it expires?
No. However, the agreement can be extended so that it will not expire.
TIP: The extension must be in writing, dated and signed by both parties.
My ex-husband refuses to pay me the money owed under our prenuptial agreement. What can I do to enforce the agreement?
You can sue your husband for breach of contract. By refusing to make the payment as required by the terms of the agreement, you husband has violated the contract (your prenuptial agreement).