Whenever a celebrity divorce is in the news, people always want to know two things: was there a prenup? And will it hold up in court?
Prenuptial agreements are challenged in court all the time and there are numerous cases where the courts have ruled against a prenup. There are even cases where egregious marital misdeeds have enabled aggrieved spouses to successfully negotiate larger payouts (hello, Tiger Woods) than their prenups specify.
There are a number of other reasons why a court may disregard a prenup, including:
• If the prenup was signed under duress. Prenups should be negotiated well in advance of the wedding, not sprung on the bride or groom the day before the ceremony.
• If one spouse did not have legal representation. Both spouses should have their own attorneys participate in drawing up a prenuptial agreement.
• If one spouse misrepresents assets or liabilities.
• If one spouse was incompetent or incapacitated at the time the prenup was signed, either by being under the influence of alcohol or drugs, or mentally incompetent.
• If the prenup limits future child support or custody rights.
• If the prenup does not provide for any spousal support.
Most challenges to prenups involve spousal support, generally because the couple accumulated many more assets during the marriage and the prenup no longer takes that into account.
A visit to your family law attorney to update your prenup via a postnuptial agreement may help your agreement survive a challenge in case of a divorce down the road.