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What might make a prenup agreement unenforceable?

Premarital agreements are an increasingly common part of marriages. They can be especially useful for a spouse who has valuable assets they want to protect. Florida law is generally quite flexible as well, meaning the agreement can be customized based on the couple’s needs.

You can not just write whatever you want in a prenup, however. There are instances in which a court may find a premarital agreement unenforceable.

Involuntary or unconscionable

First and foremost, a premarital agreement must be in writing and signed by each spouse. It can include provisions for things such as property division, insurance policies and alimony, making a prenup potentially quite valuable for those with high income or lots of valuable assets.

So what might make a premarital agreement unenforceable? There are a few possibilities, which a spouse challenging the validity must demonstrate to the court.

If one spouse did not sign the agreement voluntarily, or signed it due to duress, fraud or coercion, a court may find the prenup unenforceable. A court might also deem a premarital agreement unconscionable, and therefore unenforceable, if:

  • One spouse did not fully disclose all of their property or obligations
  • One spouse did not voluntarily express and waive their right to have that information disclosed
  • One spouse did not have adequate knowledge of the other’s property or financial obligations

In addition, a premarital agreement can not include anything that results in a violation of public policy or an illegal act, nor can any of the agreement adversely affect child custody or child support.

Questions about a premarital agreement

Divorces are emotionally taxing, and often quite stressful for those involved. This can lead to contentious arguments related to a prenuptial agreement.

If you have a premarital agreement and there are questions about enforceability, it may be smart to have an attorney look it over. But remember, one spouse simply no longer liking the terms of a premarital agreement, or feeling the terms are now unfair, does not in and of itself make a signed prenup invalid.

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