Although prenuptial agreements were once thought to encourage divorce by making it easier, courts are now looking on them more favorably, and they are becoming more and more normal. Even though courts are very familiar with them and they have become commonly accepted, there are still a few things that may render a prenuptial agreement void.
Was the prenuptial entered into willingly?
If one party was coerced into signing the premarital agreement or forced to agree to the terms under duress, the agreement will not be enforceable. Additionally, the courts have a tendency to look at the agreement in the context of both parties on the date when it was entered into, so if it was grossly unfair then, the court may also consider it unenforceable. Additionally, the court may find it invalid if one of the future spouses did not have legal representation at the time of the agreement and was significantly less well-informed about legal issues than the other spouse.
Is the prenuptial agreement free of any limitations on child support?
Although drafting a prenuptial agreement makes it easier to determine what happens in the event of a divorce, there are certain things that are off-limits. Most notably, a couple cannot sign a prenuptial agreement that will waive or limit child support or place restrictions on who gets custody or how often one spouse has visitation privileges. The courts do not allow these types of advanced child custody and support decisions for public policy reasons and because they believe that the children’s needs should be placed before those of the parents.
Does the prenuptial try to allocate debt that is in both spouses’ names?
A court may allow you to allocate debt in a prenuptial agreement. However, that does not mean that creditors are bound by your agreement. If the debt was entered into by both of you, then you both may still be liable. Although a debt provision will not invalidate your prenup, it is important to know that it will not get you off the hook. It still may be a good idea to include a debt provision in your prenuptial agreement because a court can enforce the provision against your ex-spouse, and you can get reimbursed by your former spouse if you end up paying the creditors for debt that was assigned to him or her.
Is there a severability clause?
Even if your prenuptial agreement contains a provision that is unenforceable, that does not mean that the whole agreement is necessarily unenforceable. If your prenup contains a severability clause that prevents a bad or unenforceable provision from voiding the rest of the agreement, then the valid parts should still be upheld.
No matter how complicated your divorce, we can help. For help with your case or in any other aspect of family law, you can turn to the Law Office of Renkin & Associates for the help that you deserve. Reach out to us today for assistance.