Divorce attorneys in Wisconsin and around the nation are taking note of a recent court case in which the judge threw out a prenuptial agreement that a woman had signed prior to marrying her multimillionaire husband. Previously regarded as difficult to void, prenuptial agreements have become increasingly common, especially for people with high net worth or those entering second marriages. How enforceable are they in light of the recent court case?

A prenuptial agreement is a legal document signed prior to marriage documenting the future spouses’ understanding regarding which of their assets will become marital property and how property division will be handled in the event of divorce. There are several circumstances under which a court may refuse to enforce a prenuptial agreement. If one party undervalued or failed to disclose assets at the time the prenuptial agreement was signed, the court may refuse to enforce it on the grounds of fraud. Accordingly, full disclosure of all assets and liabilities is important to the future enforceability of the agreement.

A prenuptial agreement also is subject to revocation if it was coerced or executed under duress. The agreement should be negotiated and finalized well in advance of the wedding, not presented for the first time shortly before the bride is to walk down the aisle. It should be signed by both parties in the presence of a notary public or other witnesses who can confirm that it was executed voluntarily and without coercion.

Poorly drafted agreements and those containing a number of errors also are susceptible to being thrown out. Agreements that contain unconscionable provisions, such as a stipulation that no child support will be owed under any circumstance, also are subject to challenge. The best way to ensure the effectiveness of a prenuptial agreement is for both parties to have their own legal representation in the negotiation and drafting of the agreement.

Source: Forbes, “Five Reasons Your Prenup Might Be Invalid,” Jeff Landers, April 2, 2013