What Could Keep A Pre-Marital Agreement From Being Enforceable?
Fraud, coercion, duress, and failure to disclose (in advance) important facts pertaining to the assets, responsibilities, or debts of a party could prevent a pre-marital agreement from being enforceable. If an agreement purports to award child support or custody or contains a provision that would be unenforceable on public policy grounds, then that could invalidate part of an agreement or an entire agreement. Provisions that incentivize one party to encourage the other party to seek a divorce may prevent an agreement from being enforceable. For example, Utah Nielsen vs. Nielsen was a 1999 Utah Supreme Court case in which the court rendered a provision that entitled the wife to one half of the husband’s pre-marital stock ownership if the husband sought a divorce. This was unenforceable in public policy clearance because it unreasonably tended to encourage divorce by providing the wife with a financial incentive to induce the husband to seek a divorce. In other words, it provided an incentive for the wife to intentionally sabotage the marriage in order to get the husband to seek a divorce.
Ultimately, the court has the discretion to determine whether or not a provision is enforceable. In making such determinations, the court is likely to consider very closely whether or not coercion, fraud, duress, or the omission of important information occurred at the time of the signing of the pre-nuptial agreement. Although pre-marital agreements are contracts, it’s not as though they are contracts between two parties who are negotiating at arm’s length. Instead, these contracts are generally formed between parties who trust one another and who attempt to act in the other’s best interests rather than their own. Pre-marital agreements are held to the highest degree of honesty, good faith, and candor, which was expressly stated in the 1994 Utah Supreme Court case, Estate of Beesley. With that said, the 1986 Utah Supreme Court Case, Huck vs. Huck determined that pre-nuptial agreements are generally enforceable so long as there is no fraud, coercion, material non-disclosure, or attempt to contract away child support.
Can I Change Or Terminate A Pre-Nuptial Agreement After Marriage?
A pre-nuptial agreement can be terminated after marriage if both parties agree in writing to revoke said agreement, and if there is no coercion, duress, or fraudulent misrepresentation at play. Once again, the highest standards of candor, honesty, and good faith will be expected.
How Should A Person Prepare For A Divorce Or Separation When There Is A Pre or Post-Nuptial Agreement In Place?
The way in which an individual should prepare for a divorce or separation involving a pre or post-nuptial agreement is a fact-sensitive determination that necessitates a consultation with an attorney who has reviewed or drafted the agreement itself, and is familiar with the facts of the case.
How Do Pre-Nuptial Agreements Come Into Play After Divorce Litigation Has Begun?
In divorce litigation, one party will usually file a motion for temporary orders, such as temporary custody, temporary child support, or a temporary possession of certain property. The other side will then file an opposition and counter-motion. Either side can quote the relevant terms of the pre or post-nuptial agreement in their motion and simply ask that the court enforce that agreement. If the court finds that the pre or post-nuptial agreement is valid—meaning that it is absent duress, undue influence and coercion, and does not violate public policy or laws in the court—then it will be enforced at a temporary hearing or trial.
Does The Divorce Process Move Faster And Smoother If There Is A Pre-Nuptial Agreement In Place?
The divorce process will move faster and smoother when there is a pre-nuptial agreement in place, granted that the agreement is absent a legitimate claim of fraud, duress, coercion, and attempts to invalidate the agreement. While one party may not feel that the end result of a divorce is equitable, the presence of a pre or post-nuptial agreement will certainly make the process move administratively quicker. However, if there is an apparently legitimate claim to invalidate the agreement, then the issue of whether or not a valid agreement exists can become a lawsuit within a lawsuit, which can complicate the divorce. For this reason and many others, it is important that pre and post-nuptial agreements are done correctly. If you or anyone you know has questions about pre-nuptial and post-nuptial agreements, contact the Law Offices of Kelly Peterson.