Divorcing couples can void prenuptial agreements, but rarely

Not too long ago it was considered taboo to ask a potential spouse to sign a prenuptial agreement. The stigma attached to prenups has diminished, and more New York couples today may consider them than couples in the past. No matter how willing people are to sign these agreements at the start of their marriages, however, when the relationships end some may wonder if it is possible to break these pre-marital agreements.

Prenuptial agreements are basically private contracts that detail property division, responsibilities and expectations, and the amount of spousal and child support that will be paid if the marriage ends in divorce. Well-written pre-marital agreements can be quite difficult to break, but the contracts can be voided under certain situations, depending on the terms of the agreement itself and the jurisdiction in which it was created.

Courts are unlikely to uphold a prenuptial agreement premised on fraud. For example, if a spouse fails to report a significant amount of assets, a judge may amend or void the contract. The key word here is significant. It depends on how much the spouse concealed compared to his or her overall wealth. This is a facts and circumstances inquiry and will vary from case to case.

Other issues that can void a prenup include signing one under duress, though duress is typically difficult to prove. Again, the amount of duress required to invalidate a prenuptial agreement depends on the jurisdiction. In addition, a court may void an agreement if it contains unenforceable conditions. As with duress, however, there is a high threshold to meet, and the condition must be particularly unconscionable.

Because it can be difficult to get out of a prenuptial agreement once one has signed it, those who are considering entering into one should consider seeking the assistance of a trained professional who can explain and protect their legal rights.

Source: Reuters, "Breaking up is hard to do, breaking prenup is harder," Geoff Williams, Oct. 5, 2012

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