Prenuptial agreements used to be reserved almost exclusively for the rich and famous. That's no longer true. Whether it's a case of "once burned, twice shy" for divorcees who are remarrying, or just a desire to preserve assets, prenuptial agreements are becoming more and more common. With a little luck, most couples who obtain one will never have to use it. Unfortunately, if the marriage fails, one of the spouses may look at the prenup and experience a major case of "buyer's remorse." That's when things get interesting.
What's the Purpose of a Prenuptial Agreement?
A prenuptial agreement (commonly called a "prenup") is a legal contract between spouses-to-be. It lists each of the prospective spouse's individual assets and indicates which of those assets will remain the exclusive and separate property of each spouse in the event of a divorce. It also commonly sets limits on spousal support (alimony) and addresses many of the other issues that a court would normally decide during a divorce.
If the spouses ultimately decide to end the marriage, the standard procedure is to introduce the prenup into evidence at the start of the divorce. Since all the issues contained in the agreement have technically been predetermined, the only thing that should be left for the court to do is to decide any issue not covered in the prenup. For example, a judge may decide how to divide any new property that the couple acquired during the marriage and address child support or custody issues, since prenups cannot cover child-related issues.
Asking the Court to Uphold the Prenup
You would think that since both spouses signed the prenup, it should be fairly smooth sailing if they decide to divorce. Not so fast. While love may have been in the air when they entered into the agreement, that's now been replaced by unhappiness and, very possibly, a healthy dose of resentment. And all too often, one of the spouses will later decide that the agreement isn't fair. Many times, there's no real basis for that contention, but sometimes there is. At that point, a judge normally has to get involved to see if the agreement is valid. And this is where a motion to enforce the agreement comes into play.
The attorney for the spouse who wants to uphold the prenuptial agreement will file a motion to enforce it. A motion is basically a formal, written request for a judge to decide a specific issue or issues.
What the Court Considers in a Motion to Enforce
Since the prenup is presumed to be a legally binding contract, the spouse who's contesting it will have to convince the court there is some legal basis to reject it. Being unhappy with the agreement isn't enough. The court will look at certain factors to decide if a prenup is enforceable, such as:
- Is the agreement in writing? It needs to be in order to be valid.
- Is the agreement fraudulent? It probably is if one of the spouses intentionally omitted certain assets or understated income before the couple signed the contract.
- Was the contesting spouse under duress, coerced, or mentally incapacitated at the time of the signing? If one spouse was unduly pressured, or perhaps intoxicated or under the influence of drugs when the agreement was signed, a court may find that consent was not voluntary, and the contract is invalid.
- Did both spouses have their own attorneys, who reviewed the agreement? Even if one attorney prepared the agreement, each spouse should have independent counsel review it. Without that, the unrepresented spouse can claim a lack of understanding.
- Are any provisions in the agreement invalid? For example, an agreement can't legally eliminate child support. In a case like that, however, the court might only remove that particular term of the agreement, leaving the other provisions intact.
- Is the agreement unconscionable? If the agreement is grossly unfair, the odds are a court won't enforce it. An example of this might be where upholding the agreement would leave one spouse destitute.
Barring the existence of any of these factors, it's likely that a judge will grant a motion to enforce the prenuptial agreement. If you have specific questions, you should contact a family law attorney for advice.