Most couples craft a prenuptial agreement when they’re head-over-heels in love and don’t really believe their upcoming marriage will ever end in divorce. They may not give any thought to that prenup until and unless the marriage begins to fall apart.
If divorce appears to be in your future, it’s time to take a look at that prenup. No matter how long ago it was signed, it’s still valid unless you included a sunset clause that created an expiration date, as some couples do.
What can make a prenup invalid?
What if the prenup is still in effect, but you believe that all or part of it is now grossly unfair to you? Maybe you were pressured to sign a prenup that your spouse, their family drew up.
Either of those things could make the prenup “unconscionable.” That’s a strong word, but it’s used in the law to refer to any contract that is extremely unfair to one of the parties.
If you and your spouse both had legal representation when you negotiated and signed the prenup, that shouldn’t be the case. However, sometimes, people can successfully argue that at least one or more clauses in their prenup are unconscionable and therefore invalid.
Rulings in Ohio prenup challenges
Decisions in Ohio court cases have brought more clarity to what makes a prenup valid or invalid. For example, for a prenup to be valid and enforceable:
- It must be “entered into freely without fraud, duress, coercion, or overreaching.”
- The terms may not “promote or encourage divorce or profiteering by divorce.”
- Both parties must provide “full disclosure” or otherwise have “full knowledge and understanding of the nature, value, and extent of the other parties’ property.”
That last requirement is especially important if the property division terms in the prenup are vastly disproportionate. If one party “receives disproportionately less than what he/she would receive from an equitable distribution, then the party claiming the agreement is valid has the ‘burden’ that there was full disclosure or knowledge of the assets.”
In some cases, what may have seemed fair when a prenup was signed – such as any clauses addressing spousal support — may be deemed unconscionable under present circumstances if the prenup needs to be used.
It’s crucial to carefully read any prenuptial or postnuptial agreement you have and be prepared to challenge or defend it, depending on your circumstances. It’s wise to get experienced legal guidance as early as possible.
