“I’m sorry I signed a prenup: now that I’m getting a divorce it doesn’t seem fair to me. What can I do about it now?”
The first place to attack any prenup is at the roots. There are several circumstances under which a prenup was signed that may render the entire contract unenforceable. For example, if the document was signed while under duress, or signed in response to active coercion from a party pushing the agreement, the whole prenup may be tossed out. Similarly, a court may declare the prenup completely unenforceable if its proponent failed to fairly disclose their financial condition at the time it was presented, or if the other party was not given adequate time to have the prenup reviewed by an attorney before signing.
If the facts of a particular case do not support a finding that the agreement is unenforceable, the next step is to challenge specific provisions within the prenup and ask that they be set aside and removed from consideration by the court. Unexpected changes occurring between the time of signature and the divorce can make certain clauses so manifestly unjust, that a Judge will refuse enforcement on the basis that they are, “unconscionable.” Many prenups address the issues of child custody, support, and visitation time. However, divorce courts are charged with protecting a child’s best interests. This duty takes precedence over the private agreements between parties found in prenups, making practically any provision that governs those rights related to the minor children unenforceable. Finally, the terms of a prenup are often greatly interdependent. To set aside of even one central component can render the rest of the agreement unconscionable or simply inoperable, effectively removing it from any consideration throughout the proceedings.
A prenup is not always the final word on contested matters in a divorce. However, before signing a prenuptial agreement, one’s first thought should always be, “Buyer Beware”.
Christopher T. Marx is a lawyer at Janet Boyle & Associates, Ltd. (JBA) Firm in Illinois.