Prenup, Before, Handshake, Contract, Compatible

When and Why a Prenuptial Agreement May Not Be Valid or Enforceable

When most people hear the term prenuptial agreement, they usually think of celebrity marriages and marriages of people with a high net worth. The truth is, any couple can have a prenuptial arrangement. The one thing all parties that decide to have one have to think about is whether the agreement is valid when written or if it is enforceable after divorce. There are a few reasons why a prenuptial agreement may not be valid or enforceable and this is what we are going to look at below.

Prenup, Before, Handshake, Contract, Compatible

What Are Prenuptial Agreements?

Before we look at when and why a prenuptial agreement may be invalid or unenforceable, we need to answer the question, “what is a prenuptial agreement?”. A prenuptial agreement is a contract that stipulates the division of assets, spousal support, debts, and liabilities in case of a divorce. Prenuptial agreements can also help ease the tension and hostility that often comes with highly-contested divorces.

No Written Agreement

A prenuptial agreement is not enforceable if it is not written down. Verbal agreements are easy to dispute and the party claiming they were promised something that was not written down may feel slighted when the court does not side with them. If it was not written down, it is not enforceable.

Lack of Capacity

A prenuptial agreement is essentially a contract between two parties. The main tenet of a contract is that all parties must have the capacity to get into that contract. This means they have to be of legal age and have adequate capacity at the time of signing the contract (they should not be drunk, for example).

Lack of Adequate and Proper Disclosure

Before the prenuptial agreement is signed, all parties must disclose their assets and liabilities. If there is no adequate, full, and proper disclosure, the agreement is not valid and may be challenged in court.

The reason why this is a requirement is that each party has to know what the other is bringing to the table and what each of them stands to lose in case of a divorce. It also helps paint a picture of the financial situation either party is getting into so they know what to expect in the marriage.

Coercion and Duress

For a prenuptial agreement to be valid and enforceable, each party should sign it willingly and without being coerced. Examples of coercion include being given too little time to read and understand the agreement or not giving enough time for the other party to get legal advice.

Duress means agreeing to something under pressure. Coercion can introduce duress, but there are other ways to introduce duress. These include bodily harm or threatening to call off a wedding which would be embarrassing for one party and thereby would introduce pressure to sign to avoid the cancellation of the wedding and the embarrassment that entails.

Limited or No Access to Legal Advice

All parties must be able to get legal advice from an experienced attorney and be given enough time to sit with their attorney to analyze, dissect and understand the agreement before signing it.


A prenuptial agreement is very important in the unfortunate event of divorce. It helps lay down how assets and liabilities will be handled and can help make the process a lot easier and smoother. It is therefore important to check all boxes to ensure the agreement is valid and enforceable should you ever need it.