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You've drafted a premarital contract. Can you void it later?

We have discussed the utility and growing popularity of both prenuptial agreements and postnuptial contracts (separation agreements) for many couples in prior blog posts, including our immediately preceding entry.

Suffice to say that, as one divorce attorney notes, such agreements are "not taboo anymore" and feature in far more marriages than was the case in bygone years. One estimate posits a tenfold increase in such contracts over 20 years ago and the possibility that as many as half of all couples in high-asset marriages have executed a marital contract.

What if such an agreement looks untenable or even unlawful for one of the spouses in a marriage rapidly headed toward divorce? Can marital contracts be readily voided?

The short answer: Virtually any agreement can be rendered null and void and broken, provided that there is something within it that is legally deficient or flatly unlawful.

Noteworthy at the outset is that a prenup or postnup -- like any other contract -- might be deficient because it contains a material mistake. In short, an agreement might have been filled out incorrectly or contain one or more glaring inaccuracies. The potential for that underscores immediately the need to have a family law attorney with experience negotiating and drafting marital contracts firmly on board.

A premarital contract or separation agreement might also be thrown out based on one of the spouses not being candid about assets. Courts don't like lies, especially when they are material.

Occasionally, though not commonly, a spouse can successfully argue that he or she was coerced into signing such an agreement. Likewise, a contract can be rescinded based upon fraud.

And last, courts do not look kindly upon marital contracts that violate public policy or are in some way repugnant. "You will never get child support" or "You must surrender custody in a dissolution" might be executed clauses that come to mind.

A couple seeking to avoid contractual pitfalls should ensure that competent legal counsel is actively involved in drafting a marital contract.

Source: Reuters, "Breaking up is hard to do, breaking prenup is harder," Geoff Williams, Oct. 5, 2012

  • Our firm has a deep well of experience drafting premarital contracts for high-asset and other clients. For further information, we invite readers to visit our Alpharetta, Georgia, Prenuptial Agreement page.

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