Why Are Some Prenups Deemed Invalid?

What Causes the Court to Invalidate a Prenup?

Roughly 10% of Americans have prenups, and these helpful documents can make it easier to protect your assets and avoid acrimonious fights if the relationship ends. However, a prenup is not always a foolproof way of having a simple divorce. There are several reasons that a prenup can be deemed invalid.

Making Preemptive Arrangements for Child Support or Custody

A prenup is mostly supposed to be about discussing alimony and how to handle assets that you are bringing into the marriage. You cannot use the prenup to arrange care or support for your children because child care is not about personal preferences or what’s easiest for you. Instead, the state believes it is necessary to focus on the child’s best interests, which cannot be fully determined by an agreement made years ago. Prenups about parenting are thrown out, and instead, the state will use other factors to determine child support and custody:

• If the parents can create a satisfactory custody division agreement on their own, the state will typically abide by that.
• If both parents contest child custody, the state will try to split custody time equally between parents.
• The state may reduce a parent’s custody time if they are unfit to parent.
• In cases where one parent has more custody than the other, the parent with less custody time might need to pay child support.
• Both parents must contribute to the child’s food, board, schooling, health care, child care, and other expenses.

Dividing Assets in a Drastically Unfair Way

New Jersey prenup laws require that any agreement be relatively balanced. Couples don’t have to agree to a 50/50 split, but one cannot use the prenup to impoverish another. There are all sorts of things that can make a prenuptial agreement seem unfair, including:

• Requiring a person to surrender business assets they owned before the marriage if they were unfaithful during the marriage.
• Refusing to provide any alimony to a spouse who has given up their own career to support their spouse’s career and raise children for years.
• Stating a set income for alimony that is no longer reasonable because years have passed since the prenup was signed.
• Making the “losing side” in a contested divorce pay for the other party’s attorney fees.
• Getting one spouse to surrender all their shares of joint assets without any compensation for giving up any stake in split properties.

Including Provisions That Violate Bodily Autonomy

When figuring out how to invalidate a prenup, you should consider whether any requests in the prenup break the law. In any legal document, all adults have the right to decide how they use and control their bodies. If a provision violates this right, it is invalid. Unfortunately, prenups are starting to have more and more issues with violating bodily autonomy. Thanks to a few misconceptions shown in the media, many people assume that a prenup can essentially say, “you follow my list of rules or give up any rights to money in the divorce.” However, these types of provisions are usually not valid. Examples of prenuptial provisions that could violate bodily autonomy rights include:

• Statements that a spouse must have sex with their partner a set amount of times each week.
• Requirements that a spouse use certain health care treatments or avoid certain types of medical care.
• Provisions that require a spouse to maintain a certain weight or level of personal grooming.
• Rules demanding specific types of sexual activities.
• Statements that a spouse has to perform chores or do other physical labor.

These sorts of statements are always thrown out in court. The judge can choose to just negate that clause, or they can entirely dissolve the prenup. Since the court tends to see these sorts of prenuptial arrangements as excessively controlling, it may end up making the whole prenup look unfair and imbalanced.

Putting Undue Pressure on One of the Parties to Sign the Document

Any legal contract that is signed under duress is not a valid document. If the court finds that one partner forced the other to sign the prenuptial agreement, the entire thing will be thrown out. In cases of coercion, there is no way to just invalidate one clause and keep the rest of the document intact. The entire prenup will be set aside, and divorce lawyers will need to help create a new plan for dividing assets. Coercion can mean more than just pointing a gun at someone’s head and telling them to sign it. Here are some more subtle types of coercion that can invalidate a prenup:

• A person surprised their partner with a prenup right before the marriage ceremony started and threatened to call off the whole thing if the prenup wasn’t signed.
• One party didn’t have legal representation and was intimidated into signing a document they didn’t understand.
• A parent threatened to keep the other parent from having access to their child if they didn’t sign the desired prenup.
• An abusive partner used years of emotional and physical abuse to keep their partner from daring to disobey them in any way, and then, they requested that the person sign a prenup.
• One party refused to pay for the other’s medical care until they signed the prenup.

Using Fraudulent Means to Get the Prenup Signed

Like any other legal contract, a prenup is invalidated if it was fraudulent. Any activity that purposefully misleads one of the prenup parties can be enough to invalidate it. This is why your divorce lawyer will carefully ask you about the circumstances surrounding your prenup’s creation. If the prenup was not made properly, it might get thrown out. Here are some common examples of the type of fraud that occur during a prenup’s creation:

• One person hides their assets, making their partner think they have less money than they really do.
• One of the parties in the prenup had large amounts of debt that they failed to disclose.
• A person made secret changes to the document in between their partner reading the prenup and signing it.
• One partner promising the prenup is a temporary arrangement that will be ripped up once the other partner gets pregnant but fails to do so.

Get Help With Your Prenup

If you are planning on drafting a prenup, it is important to be aware of these issues and avoid including them in your prenup. Those who already have a prenup with one of these problems will need to approach the idea of divorce carefully. It may be possible for these issues to result in a voided prenup and a more traditional method of asset division. Since prenup situations can be so complicated, you should take the time to consult with a divorce lawyer.

At the Law Office of Kelly Berton Rocco, we can go over your prenup and offer helpful advice on how to get it voided or make it more airtight. We have years of experience helping Hackensack residents with all sorts of divorce, custody, and parental rights cases. To schedule a consultation with our team, call 201-343-0078 or fill out our contact form.