7 Reasons a Virginia Court Could Find Your Prenuptial Agreement Invalid
If you go through the time and expense of drafting a prenuptial agreement, you want it to stand up in court. Drafting one yourself is risky because a court can declare the entire agreement invalid if you have invalid clauses or your soon to be ex-spouse has grounds to challenge it. It’s recommended that you have an experienced Virginia family law attorney draft your prenuptial agreement and the other party should have it reviewed with their own independent counsel, which will also keep your spouse from claiming he or she did not understand it or read it.
Here are 7 reasons why a Virginia court might throw your prenuptial agreement out.
- Information Not Disclosed or Fraudulent Information
Both parties are required to disclose all of their financial information, including assets, income, and liabilities. If one party attempts to hide assets, fails to disclose accounts, etc., the judge is likely to throw the agreement out and declare it invalid. Any other material misrepresentations or false information is grounds that could see it declared invalid as well.
- Prenuptial Agreement is Not in Writing
Prenuptial agreements must be in writing. Oral agreements will not stand up in court.
- Contains Invalid Provisions
You have quite a bit of latitude when it comes to drafting prenuptial agreements. They can cover more than just financial aspects and discuss other obligations. In the event one of these provisions violates the law, the judge could opt to strike the illegal clauses or declare the entire agreement invalid.
- Signed Under Duress or Without Mental Capacity
While extremely difficult to prove, a spouse may claim they were coerced or forced into signing the prenuptial agreement. You have the right to review the document, including have an attorney review it with you. Your soon-to-be ex cannot hand you the agreement and a pen and demand you sign immediately.
If the spouse was drinking or under the influence of narcotics, he or she can claim mental incapacity and they did not understand it at the time. If one spouse was very ill and incoherent, they could argue mental incapacity as well.
- Agreement Not Signed
In order for a prenuptial agreement to be valid, it must be signed by both parties. It cannot be signed by only one party, otherwise the judge will declare it invalid.
- Wedding Did Not Take Place
If the wedding did not take place, a prenuptial agreement will be invalid as it needs the act of marriage to make it effective.
- Agreement is Unconscionable
Agreements that are very lopsided and completely unfair to the other spouse are not likely to stand up in court. You cannot draft an agreement that would put one party in severe financial hardship if there was a divorce. These are known as unconscionable contracts and they are almost always found invalid.
Retaining a Virginia Family Law Attorney
Involving a Virginia prenuptial agreement attorney can play an important role in determining whether yours stands up in during a divorce. Contact the team at Whitbeck Cisneros McElroy PC at 703-997-4982. Let one of our skilled family law attorneys help you draft your marital agreement or review the one your spouse prepared.