A prenuptial agreement isn’t fair unless both spouses know what they stand to receive in a divorce or inherit without one. Prenups typically must include complete lists of each spouse’s assets and debts for this reason. If one spouse deliberately conceals an asset so the other doesn’t know what he is giving up, courts might consider this fraud, which in turn makes the agreement unconscionable. However, a prenup can include language stating that the spouses waive this requirement. When such language is included, it would be difficult to have the agreement overturned unless other factors of unconscionability exist.
In some states, such as New Jersey, courts have ruled that each spouse should have separate, legal representation when agreeing to sign a prenuptial agreement. Although it’s not required that a lawyer actually draft the agreement, each spouse should have his own attorney review it for fairness. While possible, lack of counsel might not overturn a prenup in and of itself.
Date of Signing
Both spouses must enter into a prenuptial agreement voluntarily. This can make the date of signing very important. A spouse can use an eleventh-hour signing, such as the night before the wedding, to claim that he did not have sufficient time to digest the agreement's contents or to be really sure it was what he wanted. California law requires signing a full week before the wedding. When a spouse signs within 24 hours of saying “I do,” he might later make a claim that his spouse coerced him. He could allege that his only other option was to call off the wedding. This holds more weight if the ceremony is lavish and a lot of money is at stake that wedding vendors might not refund.
In all states, prenuptial agreements can be “undone” when spouses don’t adhere to their terms. For example, if spouses vow to keep all their finances separate, then a few years into the marriage they establish joint financial accounts or buy a home together, this jeopardizes the prenup’s validity. Either spouse could later make a claim that they deliberately overturned it, so a court should not uphold it.
Unconscionability of a prenuptial agreement usually occurs when it falls short of most, if not all, legal requirements. The more areas in which it falls short, the more likely it is that a court might set it aside. However, a prenup might still be unconscionable when it meets all legal conditions. If its terms are so grossly lopsided that it leaves one spouse virtually destitute after death or divorce, a court probably would not uphold it. In all states, overturning a prenup involves petitioning the court to set it aside during divorce or probate proceedings. Ultimately, this means it usually comes down to the opinion of a single judge in a trial.