We have written a number of posts recently on prenuptial agreements and the necessary elements that they need to have to be executed successfully. What this post will aim to provide is some insight into the various issues that can result in a prenuptial agreement being declared invalid later in court.
First, it's important to remember that every state's laws are different, so not everything that follows may necessarily apply in Ohio. To be confident that whatever is in your agreement stands up to scrutiny, it's important to work with a skilled attorney. One might even go further and say that both parties to the agreement should have separate counsel.
That said, here are some of the most common reasons why a premarital agreement might be declared null.
- It's oral, not written: To be enforceable, the agreement must be in writing.
- Improper execution: The agreement must be signed before the wedding takes place, and perhaps well in advance of it. If a spouse puts the paperwork in front of his or her intended moments before the ceremony without any time for due consideration, it could support a later claim of duress.
- Undue Pressure: In addition to the caveat about timing above, any perceived pressure on one of the parties - whether it is from the spouse-to-be, a member of his or her family or a lawyer - could void the agreement.
- Document wasn't read: This is an important aspect of any legal agreement. Perhaps reflecting that, Ohio law requires that prenuptial agreements be signed in the presence of two witnesses.
- Provisions violate public policy: Child support matters would come under this heading. A prenuptial agreement could include such provisions, but they won't be valid to a court because the court is required to make custody and visitation decisions based on its view of the best interests of the children.
- False or incomplete disclosure: Full transparency about income, assets and liabilities is required. Leaving something out is as bad as a falsification.
- Gross unfairness: Terms of a prenuptial agreement can ostensibly include anything. However, if a court views the terms as grossly unfair, or as unconscionable, they can be invalidated.
There is nothing wrong with wanting to plan for unknown eventualities in life, but there's a need to be sure that the plan is equitable to all parties.