If your prenuptial agreement is invalid, the court can throw it out during a divorce. You may have been counting on that protection or expecting it. That’s why it’s so important to know in advance if the prenup may be invalid.
But why would it be invalid? If both of you signed it, doesn’t that make it a binding contract? What’s the issue? Here are a few reasons why it could still be invalid, even if you each signed it.
One of you didn’t read it
For one thing, you do both need to sign, but you also both need to have the time to read the prenup and consider the ramifications. If you or your partner never had the time to read it – perhaps because the other person brought it up at the last minute – then it may not stand.
It encouraged the divorce
In some cases, a prenup may seem to encourage a divorce. For instance, maybe one spouse was desperate to get married and the other drafted a prenup saying that they get 100% of the financial assets in the event of a divorce. They only did this to take advantage of the other person’s desire to get married, and the agreement actually incentivizes them financially to seek a divorce as soon as possible.
It discusses children
Finally, prenuptial agreements shouldn’t be used to make decisions regarding children from your current relationship or from past relationships. You cannot waive your custody rights, for example, or state that your ex will get no custody rights if a divorce takes place. The court will help divide child custody at the time of the divorce, and they will not use predetermined decisions in a prenuptial agreement.
These are just a few reasons why a prenup could be invalid. If you’re involved in a complex divorce, be sure you understand your legal options.