Prenuptial agreements may be nullified or declared void in some situations. Certain clauses could also be voided if they are unconscionable or forbidden by law.
For example, a prenup can’t decide issues of child support or child custody. There is no agreement that can waive a child’s right to support from the parents, and a court must decide or approve of a custody arrangement based on the child’s best interests.
Challenging a Prenup
If you want to challenge all or a portion of your prenup, have a divorce attorney review the agreement. Your attorney will also need to ask you some questions about your relationship and the circumstances surrounding the prenup, such as:
- How much did you know about your partner’s finances before signing the prenup?
- When did you sign the prenup?
- Were you given an opportunity to review the agreement or have an attorney look at it?
- Has your financial situation or your spouse’s financial situation changed since the signing of the prenup?
Prenups are contracts that will generally be enforced, but there several ways to challenge their validity. You would ideally want an attorney to closely scrutinize your prenup before you begin the process of divorce or separation.
Grounds for Nullifying a Prenup
The three most common grounds for nullifying a prenup are unconscionability, failure to disclose, or duress and coercion.
Unconscionability may be present if the agreement is patently unfair to one party. However, an agreement isn’t automatically unconscionable if one spouse receives more than the other under its terms.
Disclosures are also important for prenups. The amount of alimony or property division you would receive in a divorce is dependent on your spouse’s income and wealth. If they hid assets or didn’t tell you about valuable business interests they held, then you didn’t really know what rights you were giving up by signing the prenup.
Duress and coercion can also invalidate a prenup. If the prenup was signed the day before your wedding, it may appear that the parties didn’t have much time to fully review the agreement. One party may have felt forced to sign the document in order to move forward with the wedding.
If the evidence indicates that the prenup may be susceptible to challenge, your spouse may be willing to negotiate some of the terms to avoid a prolonged battle in court. Contact a divorce attorney to discuss the contents of your prenup whether you have a legal basis for challenging the agreement.
King Law Offices is a full-service law firm with an outstanding team of professionals who work diligently, creatively, and compassionately on behalf of our clients each day. We serve the Upstate of South Carolina and Western North Carolina. Call 888-748-KING (5464) today to set up a consultation with one of our dedicated family law attorneys.