The burden is on the party trying to get out of the pre-nup to prove that the agreement was not made (1)”voluntarily” or it was(2)”unconscionable.”
Attack a prenup
The reason behind these defenses is that the party who was asked to sign the pre-nup must not have been forced into signing it.
First, in order for the prenup to be made “voluntarily,” the court must find that:
(1) the party against whom enforcement is sought had an attorney or expressly waived an attorney;
(2) the party against whom enforcement is sought had at least a week between the time they were first given the prenup and the time it was signed. Usually this means that there was at least a week before the wedding;
(3) if the party against whom enforcement is sought was not represented by an attorney, they understood exactly what rights they were waiving. That explanation of what they were waiving must be in writing;
(4) the prenup was not signed under duress, fraud, or undue influence and the party had the capacity to enter the agreement; and
(5) any othert factors the court believes are important.
Although it is not a good idea to get your spouse to sign a prenup without an attorney representing them, it is not fatal to the agreement’s enforcement.
But they must have received the proposed agreement and the advice to seek independent legal counsel at least 7 days before signing the prenup. They must sign a document waiving the rights to see a lawyer and a document acknowledging what rights they were giving up, and who provided that information.
The second defense is that the prenuptial agreement is not“unconscionable” when it was signed.
Before signing, therefore, the spouse trying to escape the prenup must show:
1. they were not provided a fair, reasonable, and full disclosure of the other party’s property or financial obligations;
2. they did not voluntarily and expressly waive, in writing, any right to such disclosure beyond that provided; and
3. they did not have, and could not reasonably have had, an adequate knowledge of the other party’s property or financial obligations.
Thus, disclosure or a waiver of disclosure in the premarital agreement may be crucial to the agreement’s validity.
Usually the parties exchange lists that disclose each party’s assets and obligations.
One issue regarding the lists is whether the parties should include values for items that may be difficult to get a precise value, like a business.
If there is no disclosure of value, the spouse may try to claim that there was incomplete disclosure. If the value is disclosed but is wrong, the prenup may also be attacked.
The parties might be able to avoid these issues by acknowledging that the values provided are only estimates.