What Does It Take to Break a Prenuptial Agreement?
If you signed a prenuptial agreement before you were married, you may be wondering what impact it could have on your divorce. And, if you recently perused the old document and gasped halfway through, then exclaimed, “They can’t hold me to that!” you’re probably hoping for a way out.
Breaking a prenup – the process of having a court invalidate the document and free you from its terms – can be difficult, but it’s certainly not impossible. The court considers evidence that might prove one of five bases for invalidating a prenup:
- Fraud — A court can throw out a prenup if you were fooled about its contents. This is possible in cases where a foreign-born spouse does not have a mastery of English or is told there’s no need to read before signing. If the document undervalues your spouse’s wealth so that you are deceived about the value of property rights you are signing away, that is also fraud.
- Coercion, duress or lack of capacity — A party must enter into a prenup willingly. Conditions that rob a party of free will, such as emotional pressure or physical threats, invalidate the contract. Also, if a person does not have the capacity to understand the consequence of signing, the contract is not valid.
- Errors of formality — New York law requires a prenup to be executed with all the formality a property deed requires to be recorded. Careless errors, vague and ambiguous language, and problems with the document’s execution can render it void and unenforceable.
- Lack of representation — If spouses did not have separate attorneys representing them prior to signing, the court will give a prenup extra scrutiny to make sure the document treats parties fairly.
- Unconscionable terms — A court expects any contract to treat each party fairly. When a prenup is so lopsided that one party gets all the benefits while the other makes all the sacrifices, the court could decide that enforcement is unconscionable. A judge can invalidate an offending part or the whole agreement.
How a judge will react to a prenuptial agreement is difficult to predict. For this reason, it’s sometimes possible to negotiate with your spouse to eliminate the most objectionable parts of an agreement to save the rest. But before deciding whether to negotiate or fight the prenup in court, consult a knowledgeable divorce attorney at Bryan L. Salamone & Associates, P.C.