Originally Posted by big mean bear
What are the top arguments that divorce lawyers use to bypass prenuptial agreements? I mean, do lawyers say that the agreements were signed under 'duress', or do judges actually analyze the situation of the marriage to see who was at fault for thet failure of the marriage? I am trying to help a family member who was recently 'left on the curb' by her mean, abusive husband of 4 years.
Although I am more than willing to give you general information, please understand that it does not substitute for state-specific legal advice or representation. The actual process of litigating a contested divorce -- and challenging a prenup -- is extremely complicated, so your friend should really hire a lawyer to do that. Also, keep in mind that I am not familiar with the facts of the case, and I have not read the agreement in question -- so again, I must limit myself to generalities:
While NO contract is iron-clad -- between business, consumer, and prenuptual contracts, prenups are the LEAST iron-clad.
Because a prenup is a contract between fiances, courts generally believe that there is a much greater risk for deception and overreaching than is the case with ordinary commercial contracts. Quite simply, it is not an arm's-length transaction, and thus various presumptions regarding its validity are much weaker. As a result, whenever a prenup is challenged in a divorce proceeding (whether by the husband or by the wife), the court will scrutinize it much more closely than it would a business or a consumer contract.
Some things will invalidate a prenup automatically:
1. Lack of FULL financial disclosure prior to executing the prenup. Both spouses must inform each other of the nature, value, and location of ALL their assets. It doesn't matter whether you think a particular asset should or should not go to your spouse in the event of a divorce -- even if it's an heirloom -- whatever -- you MUST disclose it. If one of the parties hides (or forgets to reveal) something, it will justify invalidating the prenup by the wronged party.
2. Inadequate legal representation. The spouses must either both not have attorneys, or both have separate, independent attorneys. Naturally, if one of them IS an attorney, the other one must get his/her own legal representation. A spouse's attorney may not be paid by the other spouse. (And, as with all contracts generally -- all ambiguities will be construed against the party whose attorney drafted the document.)
3. Conflict of interest. An attorney, no matter how distinguished or well-meaning, cannot -- CANNOT -- represent both parties in a prenup. The parties' interests here are adverse; and to attempt to "reconcile" them is a conflict of interest that will automatically kill the prenup.
4. Violating statutory provisions. Contrary to popular belief, there are some things that even sober consenting adults may not agree to. In most, if not all, US jurisdictions, a husband and wife cannot agree not to support each other. Not even if they are self-supporting. Not even if they are independently wealthy. Cannot do it -- it's barred by statute as being against public policy. So no, you cannot have a prenup that will give the wife a toothbrush and local cab fare in the event of a divorce.
5. Depriving children of financial support. You cannot agree not to support your children -- it's as simple as that. You also cannot agree to a custody arrangement that is against the children's best interests.
6. Depriving a spouse of access to the legal system. This, really, is the rub -- no matter how good a prenup is, nothing will stop a determined spouse from trying to have it invalidated. You cannot agree not to challenge a contract. You, furthermore, cannot agree not to divorce (though you may agree not to use a certain ground). These things, too, are against public policy.
Apart from these, there are other considerations that a court may take into account. A great disparity in bargaining power is one. Overreaching is another. A few years ago, a New York court threw out a prenup because it was sprung up on the wife with no warning 3 hours before the wedding -- in Paris, no less. The wife was quickly given "an attorney" -- a first-year associate in the firm of the husband's lawyer who took "leave of absence" for a few days so that he could, supposedly, represent the wife. Because the couple was in Paris, and this was done 3 hours before the wedding, the wife had no opportunity to hire her own, independent, counsel, or at least review the document without being rushed -- and her "representation" by the husband's attorney's employee was, of course, totally sham. Needless to say, the prenup was extremely disadvantageous to her.
The best, sanest, and most clearly enforceable prenups are either between people who are both independently wealthy, or which provide the poorer spouse with some compensation for waiving her legal rights, and do not seek to punish.
Last, but not least, a prenup deals with asset distribution
, and unless it specifically provides so, marital misconduct will not invalidate it. So, abuse may be an excellent ground for divorce, but it's not a ground to challenge the prenup (unless, again, the prenup specifically deals with abuse and its effect on the validity of the rest of its provisions.)