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PRENUPTIAL AGREEMENT: HOW TO CHALLENGE IT? What is a prenuptial agreement? A prenuptial agreement, “prenup,” or more properly termed, a binding financial agreement, is a contract, although a very particular kind of one with special requirements. Many attorneys recommend them to clients considering marriage or those who are involved in a de facto relationship because prenups tend to prompt a frank discussion of financial matters, even in the happiest of relationships. However, these agreements usually come to public consciousness in an action for divorce. How to challenge a prenuptial agreement? Challenging a prenuptial agreement can be an uphill battle because courts like to uphold contracts, even somewhat lopsided ones, whenever possible. Nonetheless, it can be successfully done when: ARGUMENT 1: The agreement does not meet the strict statutory requirements of the Family Law Act (1975) The strict requirements of the Family Law Act are meant to set a bright line standard against which the more fundamental, if fuzzier, contract principles can be applied. Briefly, a prenuptial agreement must be in writing, contain full disclosure of each party’s finances and be signed by both. In addition, both people must have had separate, independent legal counsel, certified to the court. Finally, of course, both parties must get a copy. If these requirements are met, the presumption will be that the agreement is enforceable, and the uphill battle begins. ARGUMENT 2: The Prenuptial Agreement Was Not Voluntary This might be the situation where one party was a minor, had diminished mental abilities, was not fluent in the language in which the document was written or was intoxicated at the time the agree- ment was executed. The last case is often difficult to prove and requires a demonstration of more than just the usual bad judgment. More likely, this argument would be based on undue pressure, a threat of some kind, or an agreement presented at the altar, for example. To be enforceable, a prenuptial agreement must be prepared and executed sufficiently ahead of the wedding for both parties to have had a reasonable time to consider it and consult with an attorney. ARGUMENT 3: There is Some Underlying Misrepresentation This might be the case where one party was unaware that the agreement being signed was a prenuptial agreement or was encour- aged not to read it because it was “just some paperwork.” The real issue is likely to be the completeness of the financial disclo- sure. If, at the time the agreement was signed, one party believed the other was a penniless bicycle mechanic, rather than the proud owner of a yacht and a mansion, the prenuptial agreement might be set aside on the basis of fraud.Tangentially related are representations in a prenuptial agreement that are simply unenforceable. ARGUMENT 4: The Agreement is Grossly Unfair, or Unconscionable Although lawyers like to view prenuptial agreements as a tool for financial planning so that couples can live happily ever after, the truth is that they are often used to protect the assets of the party who comes into the marriage with more of them. Prenups are often biased in favor of one party, and that is perfectly within the law if consent was informed and voluntary. The law will generally not rescue someone from a bad deal. Some agreements, however, including those that leave one of the spouses with no assets on divorce, are so shocking that courts may step in to modify them. Even the most zealous of drafters would not recommend leaving either party in poverty.

Prenuptial agreement: How to Challenge It?

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PRENUPTIAL AGREEMENT: HOW TO CHALLENGE IT?

What is a prenuptial agreement? A prenuptial agreement, “prenup,” or more properly termed, a binding �nancial agreement, is a contract, although a very particular kind of one with special requirements. Many attorneys recommend them to clients considering marriage or those who are involved in a de facto relationship because prenups tend to prompt a frank discussion of �nancial matters, even in the happiest of relationships. However, these agreements usually come to public consciousness in an action for divorce.

How to challenge a prenuptial agreement? Challenging a prenuptial agreement can be an uphill battle because courts like to uphold contracts, even somewhat lopsided ones, whenever possible. Nonetheless, it can be successfully done when:

ARGUMENT 1: The agreement does not meet the strict statutory requirements of the Family Law Act (1975)

The strict requirements of the Family Law Act are meant to set a bright line standard against which the more fundamental, if fuzzier, contract principles can be applied. Brie�y, a prenuptial agreement must be in writing, contain full disclosure of each party’s �nances and be signed by both. In addition, both people must have had separate, independent legal counsel, certi�ed to the court. Finally, of course, both parties must get a copy. If these requirements are met, the presumption will be that the agreement is enforceable, and the uphill battle begins.

ARGUMENT 2:The Prenuptial Agreement Was Not Voluntary

This might be the situation where one party was a minor, had diminished mental abilities, was not �uent in the language in which the document was written or was intoxicated at the time the agree-ment was executed. The last case is often di�cult to prove and requires a demonstration of more than just the usual bad judgment. More likely, this argument would be based on undue pressure, a threat of some kind, or an agreement presented at the altar, for example. To be enforceable, a prenuptial agreement must be prepared and executed su�ciently ahead of the wedding for both parties to have had a reasonable time to consider it and consult with an attorney.

ARGUMENT 3:There is Some Underlying Misrepresentation

This might be the case where one party was unaware that the agreement being signed was a prenuptial agreement or was encour-aged not to read it because it was “just some paperwork.” The real issue is likely to be the completeness of the �nancial disclo-sure. If, at the time the agreement was signed, one party believed the other was a penniless bicycle mechanic, rather than the proud owner of a yacht and a mansion, the prenuptial agreement might be set aside on the basis of fraud.Tangentially related are representations in a prenuptial agreement that are simply unenforceable.

ARGUMENT 4: The Agreement is Grossly Unfair, or Unconscionable

Although lawyers like to view prenuptial agreements as a tool for �nancial planning so that couples can live happily ever after, the truth is that they are often used to protect the assets of the party who comes into the marriage with more of them.Prenups are often biased in favor of one party, and that is perfectly within the law if consent was informed and voluntary. The law will generally not rescue someone from a bad deal.Some agreements, however, including those that leave one of the spouses with no assets on divorce, are so shocking that courts may step in to modify them. Even the most zealous of drafters would not recommend leaving either party in poverty.