Written by Avvo Staff | May 30, 2014

How to enforce a prenup

A prenuptial agreement is one of the best ways to ensure that both parties have fair settlements in the case of a divorce. A prenuptial agreement is entered into before a marriage when one or both parties have debts or assets that they do not want the other party to deal with in case of death or divorce.

Especially in a second marriage, a prenuptial agreement can protect a spouse from being pursued by creditors for the other spouse’s debt. It can also ensure that inheritance goes to the children and not the spouse.

To better understand what make a binding prenuptial agreement, examine the state laws governing prenups, the basic requirements of a prenup, what should not be in a prenup, and how to fight a prenup.

State laws governing prenups

State laws govern the enforcement of prenuptial agreements. They also govern whether or not the prenuptial agreement is valid. For example, as recently as 1982 Georgia did not recognize prenuptial agreements as binding.

While prenups have become increasingly common, there are large differences in each state in terms of what they allow. For example, some states allow one party to waive the right to spousal support, while in other states this would make the entire agreement invalid. Be certain to know the laws of the state in which you're getting married before you contract the prenuptial agreement.

Basic requirements of a prenup

If you are considering having a prenup, an attorney should be involved in the writing of the prenuptial agreement. In fact, both you and the person you are considering marrying should have different attorneys representing you. Many states require this in a prenuptial agreement. If you do not have an attorney representing you in the original agreement, it may be recognized but not enforceable by the court.

Your attorney should go over the agreement carefully, to make sure everything is correct and that each party has answered truthfully.

Additionally, there are some basic rules that all states agree on regarding a valid prenuptial agreement. A good agreement must include the following points:

  • The agreement addresses the rights and requirements of both people involved in regards to property of either or both.

  • The agreement must be completely voluntary and fair.

  • The agreement must be in writing and be signed by both of the involved parties prior to their marriage. Oral agreements do not count in court.

  • The agreement should be signed at least one or two months before the marriage ceremony, to avoid any appearance of one party forcing the other to sign. You cannot sign a prenuptial agreement moments before you say your vows and expect it to hold in court. When it is signed that close to the ceremony, it is seen as possible that one party was pressuring the other into signing it.

  • The agreement states the financial terms clearly. This means that both parties state in the agreement their assets (such as stock in Apple) and liabilities (such as students loans).

  • The marital rights of both parties cannot be violated by the agreement.

  • The agreement cannot be too one-sided or oppressive.

  • The agreement is considered fair and does not render either party penniless.

What should not be in a prenup

In addition to what should be in a prenuptial agreement, there are many things that, if found in an agreement, will make it invalid. A valid prenuptial agreement cannot have the following aspects:

  • A stipulation that you forfeit all your money if your divorce.

  • Frivolous agreements, such as what to wear during social occasions or how to behave.

  • Any rules about personal, rather than financial matters. For example, any stipulation in the agreement about losing or gaining weight would render your agreement invalid.

  • A statement deciding custody or visitation of future children.

  • Anything that seems to encourage divorce. If one of the spouses seems to gain more from the prenup in case of divorce than from the marriage, or the prenup goes into too much detail about how property is divided, it may be considered to encourage divorce.

How to fight a prenup

To best fight an agreement that you feel is unfair or possibly invalid, first hire an attorney.

Next, see if you can get the prenuptial agreement dissolved by checking with your lawyer to see if it broke one of the basic requirements. If you felt in any way pressured to sign and can prove it, it can make dissolving the agreement easier.

Once your attorney has a plan of how to get the agreement dissolved, this can be filed with the divorce court. If enforcing the prenuptial agreement is called into question, a trial is the likely result.

As you can tell from the requirements, it is very difficult to craft a prenup that is infallible in court. If the agreement is not prepared well, it will not be valid in court, and some or all of the terms of the agreement can be dismissed.

It is important that you protect both your assets and your present and future rights. No agreement or marriage should ever take your rights away from you, and if done correctly, a good prenuptial agreement may help protect those rights.

Avvo child custody email series

Sign up to receive a 10-part series of useful information and legal advice about the divorce process.

Can’t find what you’re looking for?

Post a free question on our public forum.

Ask a Question

- or -

Search for lawyers by reviews and ratings.

Find a Lawyer