Starting a marriage while talking about its potential end is anything but romantic. However, this is what a prenuptial agreement does. This is a legal document that soon-to-marry couples sign to define the terms of the divorce should things fail to work.
For a prenup to be enforced during divorce, however, it must be valid. Simply put, it must among other things be conscionable. If the court determines that your prenup is unconscionable, it will invalidate it. So, when can a prenup be considered unconscionable?
If one party challenges the prenup, the court may find certain provisions unconscionable. Consequently, this might lead to the invalidation of the entire document. A prenup is deemed unconscionable if it is outrightly unfair or unjust. Do keep in mind, however, that the court will not declare a prenup unconscionable simply because it favors one spouse. One of the following elements must be met to declare the prenup unconscionable:
- When one spouse was forced, tricked or manipulated into signing it
- When either party grossly misrepresented their financial situation
- When either party lacked the mental capacity to sign the document
Here are specific examples of provisions that can render a prenup unconscionable:
When it demands that one spouse give up their spousal rights
A prenup that waives a spouse’s right to spousal support, especially if the divorce is bound to leave them financially disadvantaged cannot be enforced. If one spouse is earning substantially more than the other, the court might consider such a provision unfair or even unjust.
When it contains unethical provisions
A prenup cannot contain provisions that penalize the other party for things like aging, gaining weight or undergoing changes in personal appearance. Also, it cannot require a spouse to perform certain sexual acts. Such provisions violate the basic tenets of fairness and hence cannot be enforced by the court.
A prenup outlines how the couple would address property division in the event of a divorce. As such, it’s important that you take it seriously. Find out how you can create a prenup that will safeguard your rights and interests should the marriage fail to work.
