How to Challenge a Prenuptial Agreement

A prenuptial agreement is a type of contract entered into by a couple prior to their legal marriage. The terms of the agreement are designed to simplify the division of their property in the event of a divorce. Because many people now marry late in life with significant assets and children from previous marriages, prenuptial agreements have become increasingly important. A challenge to a prenuptial agreement must occur during the divorce process prior to the Marital Settlement Agreement that divides the spouses' assets.

Instructions

1. Identify the law in your state. As of 2009, 27 states have adopted the Uniform Premarital Agreement Act (UPAA), which makes it harder to contest a prenuptial agreement of certain grounds. Laws in other states can vary significantly. It's impossible to effectively challenge a prenuptial agreement without knowing the grounds on which the agreement can be legally challenged.

2. Argue unconscionability. An unconscionable agreement is one that is so one-sided as to be grossly unfair to one of the parties. Traditionally, unconscionable prenuptial agreements, such as one in which a spouse purports to waive his or her rights to any and all alimony, child support, maintenance or property, could be discarded by a court. While its still unconscionable to waive child support, the UPAA makes it harder to challenge a prenuptial agreement on unconscionability.

3. Argue coercion. Even under the UPAA, a prenuptial agreement must be signed and entered into voluntarily. Attorneys have been creative in showing that a prenup was coerced if significant steps in planning the wedding have already occurred. For example, once invitations are sent, it can be argued that a spouse's insistence on a prenup puts the other party in the position of either accepting the agreement or facing the embarrassment of canceling their wedding. In some cases, this has been found to be enough coercion to discard a prenuptial agreement.

4. Show lack of disclosure. Another way to challenge a prenuptial agreement is to show that at the time it was entered, you didn't have a full understanding of the other person's financial assets and obligations. Since you can't enter into an agreement about what you're unaware of, courts will discard a prenuptial agreement if you can show that the other party failed to disclose his or her full assets and liabilities. But some UPAA states have eliminated this as an effective prenup challenge.

Tips & Warnings

• The arguments described above must be made before a Family Law judge during your divorce proceeding. If you have an attorney, he will be able to schedule a hearing. If not, when your divorce proceeds to the stage of preparing the Marriage Settlement Agreement, or at any prior time that the prenuptial agreement is filed with the court, you should notify the court of your intention to challenge the agreement.

• The states that have adopted the UPAA are Arizona, Arkansas, California, Connecticut, Delaware, District of Columbia, Florida, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Maine, Montana, Nebraska, Nevada, New Mexico, North Carolina, North Dakota, Oregon, Rhode Island, South Dakota, Texas, Utah, Virginia and Wisconsin.

References

• Uniform Premarital Agreement Act
• Grounds to Challenge a Premarital Agreement
• Changing Law on the Prenuptial Agreement

Resources

• Prenuptial Agreement Overview
• Everything you need to know about prenuptial agreements
• Prenuptial Agreements