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CAN A PREMARITAL AGREEMENT EVER BE INVALID? A Guide to Problems with Premarital Agreements

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A Premarital Agreement Is A Contract

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Premarital agreements are contracts entered into by a husband and a wife in consideration of marriage

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The premarital agreement must be written, as oral agreements are not going to be enforced by a court

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You must follow all rules for drafting a premarital agreement and contract in your state for the premarital agreement to be considered valid

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If there is a problem in the creation or the terms of the premarital agreement, it can be declared invalid

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Premarital Agreements Can Be Invalidated in Whole or in Part

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If a couple is divorcing and one spouse believes the premarital agreement should not be enforced, he or she can raise arguments to the court explaining why the premarital agreement should be invalidated

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The court can invalidate or refuse to enforce certain provisions of the contract, such as when there is a problem with just one clause or part

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The court can also invalidate the entire agreement if there is a problem in the creation of the contract

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A Premarital Agreement Can be Invalidated Due to Fraud

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Both parties must enter into the premarital agreement knowing the material facts

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If one spouse hid information about assets, income or other relevant issues, then the premarital agreement can be invalidated as a result of fraud

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If one spouse lied or was dishonest, the agreement can also be invalidated due to the fraud

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A Premarital Agreement Can Be Invalidated if it Was Signed Under Duress

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Each spouse must voluntarily enter into the premarital agreement of his or her own free will

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If one spouse felt forced or coerced into signing the agreement, the agreement can be invalidated

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Presenting the agreement with limited time to review, or with threats that the imminent marriage will be called off if not signed, can all be considered examples of duress

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A Premarital Agreement Can Be Invalidated if the Terms are Unconscionable

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If the terms of the premarital agreement are grossly one-sided and unfair, the premarital agreement can be invalidated under certain circumstances

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A premarital agreement is most likely to be invalidated because it is unconscionable if one party had all of the power in the drafting and signing of the agreement and the terms are skewed heavily in that person’s favor

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Both parties should be represented by their own attorneys in the writing of the agreement to ensure their rights are protected and the terms are fair

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Provisions (or the whole agreement) Can Be Invalidated If The Provisions Are Against Public Policy

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A court will not enforce a contract that goes against public policy

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For example, provisions of a premarital agreement in which one spouse waives child support are void

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These provisions will not be enforced because children deserve to be supported by both of their parents. One parent cannot waive this right on behalf of a child

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Provisions Can Be Invalidated if They Are Ridiculous and/or Difficult For the Court to Enforce

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The court will not enforce certain provisions of premarital agreements if doing so would be difficult or ridiculous

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For example, if the agreement contains clauses related to how often your in-laws are allowed to visit or as to how often you must engage in marital relations, the court is not likely to enforce these contractual provisions

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Agreements Can Be Invalidated if They Are Poorly Drafted

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If the contract does not comply with all requirements for a premarital agreement in your state, the court will not enforce it

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If the contract provisions are vague or poorly written and the court cannot interpret the contract accurately, the court may not enforce the unclear terms

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An Attorney Can Help

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An attorney should be consulted when drafting a premarital agreement to ensure it is enforceable

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If there is a dispute over whether an agreement is valid and enforceable during the divorce process, both parties should be represented by a lawyer who can help them to make arguments for their position to the court

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We invite you to contact us at (925) 314-2320 to schedule a consultation Click to visit: www.FamilyLawGroup.com Content provided by Best Legal Practices