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When might a prenuptial agreement be unenforceable?

When a couple in Virginia executes a premarital agreement, commonly referred to as a “prenuptial agreement,” they may feel confident that it is air-tight and will serve them both well should their marriage come to an end. However, when a couple decides to divorce, there can be many disputes. Sometimes, one party even tries to challenge the terms of the premarital agreement, especially if they want out of it. The following are some ways a premarital agreement may be deemed unenforceable in a divorce.

To begin with, if the premarital agreement was entered into under coercion, it may be unenforceable. This could happen if it was entered into only days before the marriage, with one party or the other not having the chance to fully read and understand its terms. Each party must be totally upfront about their assets and debts, so that they both have a clear picture about what they are agreeing to. In addition, both parties should retain an attorney, so their interests are protected.

Also, a premarital agreement should be executed with all the necessary legal formalities. Do-it-yourself agreements may not be enough to take precedence over laws governing property division, spousal maintenance, child custody and visitation. Certain topics, such as those pertaining to child support, cannot be included in a premarital agreement and are unenforceable. Also, premarital agreements that are incredibly one-sided or unfair may not be enforced.

Couples who are in love may create premarital agreements with the best of intentions, but these agreements can be challenged should the couple divorce. It is important to remember that a premarital agreement is, in essence, a contract. Therefore, it should be executed with all the formalities required by law, so that it will be enforceable should the couple end up divorcing.

Source: Forbes, “How To ‘Bust’ Prenuptial Agreements,” Russ Alan Prince, April 4, 2018

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