When does a prenup cross the line into unconscionability?

On Behalf of | Sep 19, 2023 | Divorce |

A prenuptial contract, often shortened to “prenup,” can be an excellent way to protect each person’s rights and interests. But it can also be unfair or invalid in some cases. In marriage contracts like this, various factors could make it exploitative. If such significant factors are present, the prenup has crossed the line into unconscionability.

In simple terms, the prenup is so unjust or unfair that the court should not enforce it.

Involuntary or pressured signing

A spouse who didn’t sign the prenup of their own free will could indicate that someone possibly forced, tricked or pressured them. For example, if one person threatened to cancel the wedding unless the other person signed, that may imply manipulation.

Wording lacks clarity and understandability

It might not be valid if a prenup used confusing language, contained mistakes or overlooked essential details. For example, if the prenup doesn’t make it clear who gets what–like retirement accounts or a business–the court could see this as unclear or erroneous.

Prenup lacks full and fair disclosure

Each person must tell the other everything they need to know about their finances before signing the prenup. This means not hiding income, assets, debts or liabilities. If someone doesn’t share all this info, it could indicate misrepresentation or nondisclosure in the prenup.

Lack of independent legal advice before signing

Before signing a prenup, each person must discuss the document with their lawyer. If they don’t, they might face problems later. For instance, if one person’s lawyer writes the prenup and the other person uses the same lawyer, that could be considered ineffective assistance. Each person needs independence in choosing and consulting a lawyer to make sure all the details in the prenup are fair and clear.

In New Jersey, a prenup can’t also limit a child’s right to support and should not leave one person unable to care for themselves or their kids. If a prenup contains that clause plus provisions that are heavily one-sided or leave one person with almost nothing, one can dispute the agreement as unconscionable.



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