Most couples go into marriage with the hope that it will be an everlasting union, but they are also aware of the reality that it is possible their marriage may not last. One of the ways they may try to prepare and protect themselves in case this happens, especially if they anticipate a high asset divorce, is to create a prenuptial agreement. In their prenuptial agreement, they can agree on property distribution and if it is a valid and enforceable prenuptial agreement, it can usually override state laws on property distribution.
Texas readers may be wondering why usually and not always. There are some factors the court can consider to determine whether the prenup should be enforced these factors vary from state to state.
A spouse trying to avoid a prenuptial agreement may be able to demonstrate that the agreement is unconscionable-it is unconscionable to enforce the agreement given the divorcing couples current situation. There isn’t an iron clad framework followed to determine what is unconscionable, but courts generally consider the fairness of enforcing the prenup and if enforcing it will leave one spouse without a reasonable source of adequate support.
In addition to this, courts consider if each spouse had a ‘waiting period’ before signing the agreement- in most states residents are granted seven days. Courts also look at whether full disclosure regarding assets was provided and if the agreement was entered into by free will or through coercion.
When drafting a prenup, it is very important for couples to ensure they are following through with all the legalities required in their state, otherwise they may end up with an unenforceable agreement. An experienced attorney may be able to guide them through the process.
Source: Forbes, “Can Ryan Sweeting score spousal support from Kaley Cuoco? The truth about prenups,” Danielle and Andy Mayoras, Oct. 21, 2015