Prenuptial agreements allow couples to decide how they want their assets divided in the case of divorce or death. President Trump, for example, reportedly signed a prenup agreement with his second wife, Marla Maples, that provided Marla with only $2 million in the event of divorce. Generally, Georgia courts will enforce a valid prenup agreement. However, in a few situations, you can argue that the agreement was invalid and, if you win, the court won’t enforce it.
Before getting to valid reasons for challenging a prenup, let’s take a look at some invalid reasons. Our clients sometimes believe that a prenup won’t be enforced if one spouse cheats on the other or if one spouse unilaterally decides to start divorce proceedings. Neither is true. A prenup agreement is valid regardless of whether your spouse decides to end the marriage.
A prenuptial agreement also isn’t invalid simply because you would like more money or because your spouse now makes more than they did when you were married. The law assumes that you can voluntarily give up alimony, so a valid prenup will be enforced.
Example: Jane and Mike sign a prenup with Jane agreeing that she will get only $1,000 in alimony each month for 5 years. When they divorce, Mike is now worth millions and Jane really would like much more than $1,000 a month, so she asks the judge to set aside the prenup agreement.
Result: Jane probably won’t win unless she can prove that she signed the agreement against her will.
Valid Reasons to Challenge a Prenup
Prenuptial agreements are a lot like any other contract. They are valid if both parties agreed voluntarily to the terms contained in the document. For this reason, the best way to get a prenup thrown out is to claim that you didn’t sign it voluntarily. For example, you might be able to point to the following:
- You spouse hid assets. For example, your spouse never told you that they had a bank account with $500,000 in it.
- Your spouse obtained your signature through duress, including physical or psychological threats. For example, a spouse holding a knife to your throat would qualify. Also, springing the prenuptial agreement the morning of your wedding when you’re suffering from severe stress might also qualify—though it depends.
- You didn’t have an independent lawyer help you. Typically, this factor is part of a pattern of deception where you are lied to about your rights.
Furthermore, all prenuptial agreements must be in writing and signed by both spouses in front of a notary public. If any of these conditions isn’t true, then you can challenge the prenuptial agreement and probably win.
Invalid Provisions in Prenuptial Agreement
Some prenups might generally be valid but still contain some invalid provisions. For example, a judge won’t enforce any provision that attempts to decide child support. It’s up to the court to decide child support, and a parent can’t get out of their child support obligations via a prenuptial agreement. Prenuptial agreements also can’t decide who gets child custody. A judge will decide child custody based on what is in the best interests of the child, so any provision to the contrary will be invalid.
Example: Mike and Jane sign a prenuptial agreement where they agree that Jane will get the kids and Mike won’t have to pay any child support. As part of their divorce, they ask the judge to honor this agreement.
Result: The judge will ignore these provisions in the prenup. Mike can’t get out of paying child support, even if Jane agrees. Furthermore, Jane may or may not get the children, but the judge will need to make that decision based on the best interests of the child—not based on what was decided in the prenuptial agreement.
Call a Georgia Family Law Attorney Now
Drafting a solid prenuptial agreement requires considerable planning, and breaking a prenup requires a careful analysis of the events that lead up to the wedding. At Mitnick & Associates, we help divorcing couples prepare for a future of financial stability which might require breaking a prenup, if possible. Call us today at 770-408-7000 or fill out our online contact form.