What Makes a Prenuptial Agreement Unenforceable?

Reviewed by Elizabeth Fendley Birch

You may have signed a prenuptial agreement before entering your marriage to protect your financial interests in the off-chance you get a divorce down the line. However, if this hypothetical divorce becomes a reality, you may look back on this legal contract and no longer believe it will help you in the aftermath. Well, for this, please continue reading to learn what makes a prenuptial agreement unenforceable and how one of the experienced Clarksville divorce lawyers at Fendley and Birch can help you invalidate yours if necessary.

What Makes a Prenuptial Agreement Unenforceable in the Tennessee Courts?

In accordance with TN Code § 36-3-501, an antenuptial agreement that concerns property owned by either spouse prior to the marriage is binding on the if the court determines, in it’s own discretion, that the agreement was entered into by the spouses:

• Freely
• Knowledgeably
• In good faith
• Without the exertion of duress or undue influence upon either spouse

All arguments to get a prenuptial agreement invalidated will trace back to one of these four elements. A challenge based on concealed assets is an argument that you did not sign knowledgeably, while a challenge based on receiving the contract the night before the wedding may constitute a duress argument.

Writing, Signatures, and Notarization

Primarily, you and your soon-to-be spouse must have your prenuptial agreement down in writing. Once you do so, you must both voluntarily provide your signatures on the document. While the state of Tennessee does not make notarization mandatory, you may be better off if you take this extra precaution. This is because, should this marriage lead to a divorce, the notary may step forward and claim that you and your spouse entered this agreement willingly, thereby strengthening its enforceability in court.

Why Separate Legal Representation Helps

In addition, it may also help if you and your soon-to-be spouse retain separate legal representation before putting pen to paper. This is to confirm that you are fully aware of the terms and conditions you are agreeing to, before it is too late. Plus, to give you advice on how to possibly tweak some of these clauses to make them fairer for both parties involved.

What Are Other Ways I Can Fight to Invalidate a Prenuptial Agreement?

You may admit that you voluntarily signed off on your prenuptial agreement. But in retrospect, you may realize that you agreed to it under false pretenses or without sufficient knowledge. With that being said, in the event of your divorce, you may step in front of the Tennessee family court and fight for them to invalidate this legal contract for any of the following reasons:

• Your spouse did not give a full financial disclosure:
  • They underreported their income and financial resources.
  • They failed to report certain assets and anticipated inheritances.
• Your agreement may be found unconscionable:
  • Your spouse would walk away with significantly better divorce-related terms.
  • The court, in good conscience, cannot leave you at such a financial disadvantage.
• Your life circumstances have significantly altered since signing this agreement:
  • You were diagnosed with a serious illness that hinders your ability to work and earn a living.
  • You now have a child with special educational or healthcare needs that require great financial aid.
• You signed the agreement with insufficient time to consider its terms and conditions:
  • Your wedding ceremony was scheduled a few short days or hours later.
  • You thought your spouse would call off the wedding if you delayed signing to ask follow-up questions.

Why Child Custody Cannot Be Decided in a Prenuptial Agreement

Section 36-3-501 concerns agreements concerning property owned by one spouse before the marriage occurs. Because a child is not property and custody is not a financial term you and your spouse are free to allocate in advance. This decision ultimately falls to the court, which must determine the outcome that serves the best interests of the child. The court will make this decision at the time of the divorce, in accordance with the circumstances in front of the court at that time.

Circumstances Change Between Signing and Divorce

The reason is practical as much as legal. Years typically pass between signing a prenup and any divorce, and the assumptions behind a predetermined arrangement rarely survive that gap. A parent who planned to step back from a career to raise a child may be working full time by then. A child’s needs, schooling, and relationships with each parent will have developed in ways no one could have written down in advance. A court asked to enforce a stale custody clause would be substituting a guess made years earlier for the facts as they exist.

Child Support Is Also Off Limits

In addition to child custody, child support is outside of the reach of a prenuptial agreement for the same reason. Because child support belongs to the child, rather than to either parent, it is not up to the parent to waive or cap. Instead, support is calculated in accordance with Tennessee’s Child Support Guidelines at the time that support must be determined.

What Can Be Included in a Prenuptial Agreement

A valid prenuptial agreement can address the financial grounds between you and your spouse, including how your property will be categorized and divided. Additionally, you may be able to establish information about alimony, including whether or not it is limited or waived.

Contact an Experienced Family Law Firm Today

If you still have lingering questions at this point in time, please do not hesitate to contact one of the skilled Clarksville family lawyers. The team at Fendley & Birch is certain to be the perfect fit for you.