Lavin & Parisi, Attorneys at Law

Unconscionability in prenup agreements

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A prenuptial agreement is an excellent tool for couples considering marriage who may be concerned that certain assets or debt burdens may place undue strain on the marriage and other close relationships. Using a prenuptial agreement can ensure that your relationship is unburdened by the pressures that can accompany significant assets or significant debt. It can also keep meddling family members from causing tension within the marriage. However, sometimes a court will see fit to invalidate a prenuptial agreement due to what it considers to be overwhelming unfairness in the contract, or "unconscionability."

It is possible for a member of a marriage to voluntarily forego his or her rights to inherit assets from a spouse in the event of the spouse's death, or to give up the right to spousal support in the event of divorce, regardless of how much more one spouse makes than the other. It is even possible to agree to giving one spouse all of the debt and or all of the property, provided that each party consents to these parameters.

However, if whatever agreement is reached by the couple is considered inordinately unfair, the court may invalidate the prenup. Often, this involves one party being thrust into financial hardship while the other party moves from the marriage into significant prosperity. Generally, if a court deems the agreement to be unconscionable, it will refuse to enforce it.

For a prenup to be effective, it must be well crafted. The guidance of an experienced attorney can help those who are seeking to create a prenuptial agreement do so with the confidence that when the time comes, their agreement will be successfully enforced.

Source: Findlaw.com, "Top 10 Reasons a Premarital Agreement May be Invalid," accessed Aug. 05, 2016

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