Prenups: Tough to break but not impossible

On behalf of The Marks Law Firm, L.L.C posted in Family Law on Tuesday, October 16, 2012

Most family law attorneys are agreed that a well-constructed prenuptial agreement is a tough item to break after someone has a change of mind and heart in a divorce.

Though it’s rare to see a prenup broken, it does happen, say attorneys interviewed across the nation for a recent Reuters article on the subject.

“The most common way is paperwork mistakes,” said one attorney.

However, other circumstances can also lead to derailment of a prenuptial agreement, including the following:

Dishonesty about assets
While it might appear that fraud should be an automatic disqualifier for a legal agreement such as a prenup, it’s not always so. A New York attorney said that if a high-worth client hides a couple of million dollars out of a $100 million portfolio, that probably won’t be enough for a court to overturn a prenup there.

However, if someone claims to be worth $250,000 and they’re actually worth $2.5 million, that might well be enough to break the prenup in the eyes of the court.

One Texas attorney said he had a client who got her prenuptial agreement overturned after her husband lied to her. He gave her a revised prenup on their wedding day and when she said she’d call her attorney to discuss it, he lied and said the attorney had already said it’s OK to sign the document.

This is an especially difficult avenue to take to get a prenup overturned, attorneys from around the nation agreed. “Literally, you’d have to have a gun next to your head,” one matrimonial lawyer said.

Unenforceable conditions
What would qualify as an unenforceable condition? “It would have to shock the conscience and be something that no person in their right mind would agree to,” a Connecticut attorney said.

And yet courts do find unenforceable conditions in prenups. An example: a New Jersey couple had a condition in their prenup that required her to move out in a certain number of days in the event of a divorce.

The couple did indeed split, but not before they had a child. When the man tried to force his ex-wife and child out so that his girlfriend could move in, the court agreed to the mom’s request for more time to find suitable housing for her and the newborn.

Clearly, these are the kinds of disputes in which an experienced family law attorney can provide crucial legal guidance.

Source: Reuters, “Breaking up is hard to do, breaking prenup is harder,” Oct. 5, 2012

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