Are prenups always enforceable?

In most cases, prenuptial agreements (prenups) are enforceable. But, that’s not always the case.

In most cases, prenuptial agreements, also known as prenups, are enforceable. But, that’s not always the case, and there are some situations in which a prenup may not hold up in court. First, the agreement must be signed voluntarily by both parties. If one party was forced or coerced into signing the prenup, it may not be enforceable in the case of divorce. Next, both parties must fully disclose all of their assets and liabilities before signing the prenup. So that means if one party hides assets or debts, the prenup may not hold up in court. If the agreement is unconscionable—as in, if the prenup is so one-sided that it is unfair to one party—a court may not enforce it. With First, we guide you through the process to ensure your prenup avoids common mistakes that can make it unenforceable.

Lastly, if the agreement wasn’t properly executed in accordance with state law—for example, if it’s not properly signed —it may not hold up. Famously, that’s what happened with Steven Spielberg: He proposed to actress Amy Irving in 1985, and, to avoid financial issues later, they wisely wrote a prenup. The problem was, they just scrawled it on a cocktail napkin. When they divorced a few years later, the napkin prenup wasn’t enforceable—and the judge determined Irving was entitled to half of Spielberg’s earnings during their four year marriage, which was about $100 million.

In fact, some of these more publicized divorce stories have resulted in changing the law itself. For instance, some of California’s strict, present-day laws around premarital agreements came out of the divorce case of a legendary All-Star baseball player: San Francisco Giants player Barry Bonds.

Here’s what happened: In 1988, Bonds asked his (now) ex-wife to sign a prenup before their marriage. At the time, Bonds was earning an estimated $106,000. She signed the agreement— without having her own lawyer. When they divorced six years later, Bonds was earning much more money, and his ex-wife petitioned the prenup because of the absence of a lawyer.

The case made its way from the California Court of Appeal all the way up to the California Supreme Court, which ruled in favor of Bonds.

But, even though Bonds won that case, there was substantial legal fallout, resulting in the addition of several requirements for legal prenups in California. These include:

  • Both spouses being represented by their own attorneys, unless one spouse waives the requirement in a written statement.
  • A seven (7) day waiting period from the time they are first presented with the prenup before signing it.
  • A summary in writing of the terms and effects of the agreement to the spouse who waived legal representation (The summary must be in a language in which the other spouse is deemed to be proficient).

These are just California laws, though, and laws regarding prenups can vary greatly by state and country. By partnering with First on your prenup, you’re guaranteeing yourself an enforceable one. Which means more certainty now, and less potential conflict down the road.