Prenuptial agreements, officially referred to as antenuptial agreements in the statute, can be challenged. Though antenuptial agreements are contracts, because of the nature of the contract, they are subject to judicial review in certain circumstances.
As with most contracts, prenuptial agreements are filled with conditions. They are most commonly used to protect assets that an individual brings into a marriage in the event of death or divorce. Sometimes, there is a significant disparity in what each spouse brings into the marriage. Sometimes, there are particular assets that a party wants protected like an interest in a family business or parcel of land. The reasons for a prenuptial agreement are many and varied. In the event of death or divorce, the question arises about whether to abide by or challenge the agreement. In the event of a divorce, a main legal question that must be answered is whether it was fair at the time of the marriage and whether it was fair at the time of divorce.
Fairness upon Signing
There are a number of things to look at around the signing. First, was the procedure to enter into the agreement fair. Did both sides have counsel? Was it done at the last minute in a rush? Was one side under undue pressure to sign? Were all of the assets fully disclosed? There are a number of circumstances that could make the agreement procedurally unfair.
Another concern is whether the terms of the agreement were fair at the time of signing. Were the terms so lopsided against one party as to be unfair? Did one party give up too much or too little in the agreement? Did the party giving up something get something in return (i.e., was there consideration for the agreement)? For example, was someone going to give up a career to raise children and does the prenuptial agreement precluded them from ever being awarded spousal maintenance? That could be seen as substantively unfair.
Fairness upon Divorce
The next place a prenuptial agreement can be challenged is for fairness at the time of divorce. If circumstances have evolved during the marriage such that the agreement becomes unfair at the time of enforcement, the agreement can be challenged. The circumstances in which this may arise are many and varied. If at the time of signing the prenuptial agreement there was a higher paying spouse who committed to paying permanent spousal maintenance in the agreement but at the time of divorce has no job and is unable to work full-time at the previous capacity, some of the terms in the prenuptial agreement may be invalid. Likewise, if one party brought a lot of money into the marriage, but it was all spent during the marriage by both parties, some terms in the prenuptial agreement may not be enforceable.
If one spouse wants to challenge a prenuptial agreement, it is not unusual for the court to have a trial just on that one issue before the rest of the issues in the case are determined. The question of validity of the prenuptial agreement can significantly impact how the rest of the case is handled. If the validity of the agreement is upheld, the parties and their attorneys can use the prenuptial agreement as the basis to resolve the case. If the prenuptial agreement is invalidated, the parties and their attorneys can work on resolving the case based upon the statute. Note, it is not unusual for cases to resolve even if there is reason to challenge the antenuptial agreement. The strengths or weaknesses of the agreement can be considered as part of the risk assessment in deciding how to settle the case.