OK, so before you were married you signed this prenuptial agreement. Now, you are 
getting a divorce, and you’re wondering what your options are.
Consider hiring an attorney.
If you want to challenge a prenuptial agreement in court, then you probably need an attorney. An experienced divorce lawyer will know the details of the law relating to prenuptial agreements, which vary by state.[1] An experienced attorney can also help you build the strongest case possible for setting aside the prenup. •You can find an experienced family law attorney by visiting your state’s bar association, which should run a referral program.
•Many family law attorneys offer free consultations.[2] Call and ask if a free consultation is possible. By meeting briefly with a lawyer, you can get some sense of how strong your case is.
Check if the agreement was properly executed.
A prenuptial agreement has to be executed in a specific way, depending on state. First, it must be in writing. Also, the prenuptial agreement should be signed. If it isn’t signed, then you can have it invalidated. •Also check to see if the agreement was witnessed. Your state may have laws requiring that a prenup be witnessed. In Georgia, every prenuptial agreement must be attested by two witnesses.[3]
Read the prenuptial agreement. As you read it, you want to check for anything that is false or one-sided. Prenuptial agreements can be invalidated for the following reasons: •Incomplete information. Look to see that your spouse disclosed all of their assets in the prenuptial agreement. If they hid something, then you may have grounds to get the prenup thrown out.[4]
•False information. Your spouse may have outright lied about information. If the prenuptial agreement contains false information, then it may be broken.[5]
•Invalid provisions. Look to see if your prenuptial agreement contains any provisions that are “repugnant.” A common one is an agreement that one spouse will not have to pay child support in the event of divorce. [6] Not only is that repugnant, it is also legally invalid. A parent cannot contract out of child support obligations.
•Lopsided provisions. You might be able to argue that the prenuptial agreement is too one-sided and therefore “unconscionable.” This can be difficult to prove, since all prenuptial agreements involve a level of unfairness; if the parties were interested in fairness, there would be no agreement in the first place. However, giving virtually all marital property to one spouse could be unconscionable, depending on the circumstances.
Remember the circumstances of your signing it.
You might be able to get a court to toss a prenuptial agreement if the circumstances surrounding your signing the prenup were unfair. For example, ask yourself the following: •Did I have my own attorney? Some states require that each party have its own attorney.[7] Even if your state does not require separate attorneys, the failure to get an attorney for yourself could be proof that you were coerced into signing the agreement.
•Did I have time to consider the prenuptial agreement before signing? For your consent to be valid, you need to have had time to consider the prenuptial agreement. The less time you had to consider the prenuptial agreement, the more likely it is invalid.[8]
•Was I pressured into signing? A prenuptial agreement will be set aside if signed under coercion. However, signing any prenup involves an amount of coercion, so the coercion has to be strong in order to set the agreement aside.
•Did I read the prenuptial agreement before signing? This is another factor courts will consider.[9] If you were unable to read it for a good reason, then you may have a stronger case for setting the agreement aside.
Steven W. Hair, focuses his practice as a divorce attorney, family law attorney in Clearwater, Palm Harbor, and Safety Harbor.
For more information, visit our website at www.FamilyLawClearwater.com
or call (727) 726-0797.