Let's talk about prenups, this time the actual law.

American law only, I have no access to foreign jurisdictions’ law. Also sorry for the length, but this is a broad topic and there's a ton I left out since this is already long enough as it is. If you have specific questions or specific states you are curious about, ask me and I will see what I can do for you.

THIS IS NOT LEGAL ADVICE AND I AM NOT YOUR LAWYER

People keep telling me prenups are “worthless” and “usually thrown out.” However, this was not my experience when I practiced family law, nor does it jive with what law school taught me. So I decided to research it.

This article details some of the most common reasons for a prenup getting invalidated, primarily:

1. Your spouse wasn't honest about assets.

Makes sense to me. That would be misrepresentation, and could be the basis for invalidating just about any contract.

2. You were coerced into signing the prenup.

"Literally, you'd have to have a gun next to your head," says Steerman, who finds coercion difficult to prove. "I've never had a case in over 23 years of practicing family law where a client claimed coercion or duress." (talking about PA law, but noting it’s easier to prove in NJ).

3. There are unenforceable conditions.

By unenforceable, think repugnant. Such as if your prenup says that your ex won't provide child support. "It would have to shock the conscience and be something that no person in their right mind would agree to," says Heidi Opinsky, a divorce attorney in Connecticut. "There's a very high bar."

So what does the law say? In a WL search for “prenuptial agreement”, the first 20 cases which had to do with enforceability of prenups were as follows: 13 enforceable, 3 unenforceable (all on procedural grounds), 1 enforceable in part and unenforceable in part (alimony waiver agreed to prior to state adoption of a statute prohibiting such waivers was not enforceable, property provisions were enforceable), 3 where certain parts of the trial court’s ruling that the prenup was enforceable were affirmed, but remanding the case for consideration of some other factor the trial court failed to consider, so outcome indeterminate.

Prenups are treated like contracts:

Prenuptial agreements are governed by contract law. Hahamovitch v. Hahamovitch, 133 So.3d 1008, 1012 (Fla. Ct. App. 2014).

Prenuptial agreements are to be treated and construed like any other ordinary contract. In re Marriage of Van Regenmorter, 587 N.W.2d 493, 496 (Iowa Ct. App. 1998).

“It is well settled that duly executed prenuptial agreements are generally valid and enforceable given the ‘strong public policy favoring individuals ordering and deciding their own interests through contractual arrangements’." Van Kipnis v. Van Kipnis, 900 N.E.2d 977, 980 (N.Y. App. 2008).

Unenforceability:

“A spouse may set aside a prenuptial agreement by ‘establishing that it was reached under fraud, deceit, duress, coercion, misrepresentation, or overreaching.’” Francavilla v. Francavilla, 969 So.2d 522, 524 (Fla. Ct. App. 2007).

These appear to be the grounds for unenforceability in so many words in many states. See Gottlieb v. Gottlieb, 138 A.D.3d 30, 36 (N.Y. App. Div. 2016) (fraud, duress, overreaching resulting in manifest unfairness, or other inequitable conduct); Simeone v. Simeone, 525 Pa. 392, 400 (1990) (fraud, misrepresentation, duress); In re Marriage of Gonzalez, 561 N.W.2d 94, 96-7 (Iowa Ct. App. 1997) (unfairness, waiver of rights not knowing and voluntary, fraud, duress, undue influence); Johnson v. Johnson, 2011 WL 345671, 2 (Ohio Ct. App. 2011) (fraud, duress, coercion, overreaching); Mallen v. Mallen, 280 Ga. 43, 43-4 (Ga. 2005) (fraud, duress or mistake, misrepresentation or nondisclosure of material facts, unconscionability, a change in circumstances so as to make its enforcement unfair and unreasonable); Reed v. Reed*, 693 N.W.2d 825 (Mich. Ct. App. 2005) (fraud, duress, mistake, misrepresentation or nondisclosure of material fact, unconscionable when executed, facts and circumstances so changed since execution enforcement would be unfair and unreasonable).

Procedural unfairness is the key. Factors courts typically look to include:

“As previously noted, the primary focus of the procedural unconscionability inquiry is the advantaged party's exploitation of the disadvantaged party's lack of understanding or unequal bargaining power. Courts have found the following factors, among others, are relevant to procedural unconscionability: the disadvantaged party's opportunity to seek independent counsel; the relative sophistication of the parties in legal and financial matters; the temporal proximity between the introduction of the premarital agreement and the wedding date; the use of highly technical or confusing language or fine print; and the use of fraudulent or deceptive practices to procure the disadvantaged party's assent to the agreement.” In re Marriage of Shanks, 758 N.W.2d 506, 517-18 (Iowa 2008) (internal citations removed, citing cases from CT, FL, NC & TX).

Additionally, it appears many states focus on the opportunity to seek independent legal counsel, rather than whether such counseling was actually procured. See Friezo v. Friezo, 914 A.2d 533, 557 (Conn. 2007) (“With respect to whether the plaintiff had a ‘reasonable opportunity’ to consult with legal counsel, there is no requirement that a party actually seek or obtain the advice of counsel, only that he or she be afforded a reasonable opportunity to do so.) (emphasis in original); Gant v. Gant, 329 S.E.3d 106, 108 (1985) (same).

Furthermore, the idea that a prenup can be set aside simply because the financial disparities are substantively unfair is repudiated repeatedly by the case law in several states:

“[W]e have said when parties enter into a prenuptial agreement in the absence of fraud, mistake or undue influence, the contract is binding. … The test to be gleaned from these cases is that agreements that are substantively unfair are still binding if they were executed in a procedurally fair manner.” In re Marriage of Spiegel, 553 N.W.2d 309, 314 (Iowa 1996) (superseded by statute on other grounds).

“To adopt such a standard would require us to declare invalid any prenuptial agreement that constituted a bad fiscal bargain for one party. As we discussed earlier, we will not so grossly interfere with the parties’ freedom to contract.” Id. at 316.

“It is well established that a prenuptial agreement that is freely and voluntarily entered into will not be invalid merely because it makes a disproportionate distribution.” Millstein v. Millstein, 2002 WL 31031676, *6 (Ohio Ct. App. 2002).

“Antenuptial agreements are not per se unconscionable simply because the effect of the document is to leave the spouse with little.” Rose v. Rose*, 526 N.E.2d 231, 235 (Ind. Ct. App. 1988).

Interestingly, many states will find prenups unconscionable, and thus, unenforceable, if they unreasonably tend to encourage divorce or separation.

See Neilson v. Neilson, 780 P.2d 1264, (Utah Ct. App. 1989) (portion of prenuptial agreement that found that if husband initiated divorce, wife was entitled to half of husband’s stock ownership, was unenforceable on public policy grounds because it unreasonably tended to encourage divorce by providing wife with profit incentive to induce husband to seek dissolution). This is a fact specific inquiry, as with most of these doctrines.

Certain states have enacted statutes which eliminate alimony/spousal support from being subject to waiver via prenup. See Sanford v. Sanford, 694 N.W.2d 283, 287-90 (S.D. 2005) (explaining that SDCL 25-2-18(a)(1)-(7) does not contemplate permitting parties to contract out of alimony/support); In re Marriage of Shanks, 758 N.W.2d 506, 513 (Iowa 2008) (the Iowa Uniform Premarital Agreement Act, codified in 1992, prohibits agreements from adversely affecting spousal support).

However, others will find an alimony/support waiver valid if it is knowing and voluntary. See Cary v. Cary, 937 S.W.2d 777, 782 (Tenn. 1996); Worley v. Worley, 855 So.2d 632, 634 (Fla. Ct. App. 2003) (for waiver to be valid it must be unambiguously stated).

There is also a principle in many states that prenups which will leave a spouse destitute or on welfare are unenforceable.

“Our review of cases from other jurisdictions reveals several conceptual common threads that run through the decisions discussing and applying the exception to the general rule of enforceability of waiver of alimony provisions in prenuptial agreements: where circumstances have changed over the course of the marriage such that enforcement of the agreement would be unconscionable or unfair because enforcement would likely result in a disadvantaged spouse being unable to provide for his or her reasonable needs, the courts will set aside the relevant portions of the agreement and award alimony. O’Daniel v. O’Daniel, 419 S.W.3d 280, 286-87 (Tenn. Ct. App. 2013) (finding alimony waiver unenforceable since wife developed an autoimmune condition after the marriage—an unforeseen condition leaving her unable to work and likely to incur significant medical costs—and hence, concluding that enforcing the waiver could result in her becoming a “public charge.”) (collecting cases from CO, GA, HI, IN, KY, NH, OH and VT). Typically, these cases appear to be based upon unforeseeable medical hardships or unemployability.

But see Hardee v. Hardee, 585 S.E.2d 501, (S.C. 2003) (Provisions which waived alimony and attorneys’ fees were enforceable, regardless of the fact that wife’s health deteriorated and she could not work, as she voluntarily entered into the agreement on the advice of counsel knowing of her health problems prior to its execution, but noting a serious medical hardship occurring after the agreement’s execution may warrant a different result).

My research from the caselaw I reviewed leads to a few conclusions. First and foremost, prenup enforceability is primarily concerned with procedural fairness. In general, all states I looked at applied general contract principles to prenups, and all states were concerned with the intent of the parties. Prenups which lead to significant financial disparities would not generally be overturned on that ground alone, the more important question was whether they were entered into voluntarily and knowingly. Finally, public policy grounds appear to be fairly limited, and a change in circumstance will generally not be sufficient to alter the terms of a prenup if it is foreseeable, assuming it will not leave someone on welfare.

TL;DR: Prenuptial agreements will vary by state law, but in general, are overturned on the basis of fraud/misrepresentation, procedural unfairness, and under limited public policy grounds like leaving an ex destitute under circumstances not foreseen by the parties. They are not thrown out willy-nilly, and they are not worthless, particularly if you include a severability clause and make sure to comply with your state’s factors for ensuring procedural fairness. Also, the case law is a little scattered on duress via presenting your prenup to your fiancee right before the wedding, some courts seem to think it’s fine to present it right before, others find duress if it’s 20 days before but she’s frantically running around doing wedding plans, it’s very fact-specific, I wouldn’t take the chance, the key seems to be “reasonable opportunity to consult with independent counsel.” ABOVE ALL GET A LAWYER.

Do you still think prenups are worthless? If so, please tell me why.