Prenups can be challenged if terms aren’t fair

Most people who are getting divorced assume that if they agreed to a prenuptial agreement before they got married they’re going to be stuck with its terms.

That’s generally the case, which is why if you’re being asked by your betrothed to sign a prenup, it’s a good idea to consult with a lawyer of your own beforehand and to make sure you speak to a family law attorney instead of a generalist who’s dabbling in divorce law.

Still, contrary to general belief prenups are not necessarily bulletproof. In fact, depending on the circumstances and where you live, a divorce court judge may be willing to toss a prenup aside if the terms are legitimately unfair.

That means if you’re the person seeking the prenup, it’s important to consult with a family lawyer to help draft it.

Take, for example, a case from Michigan. Two days before Christine and Earl Allard’s 1993 wedding, they entered into a prenup under which they each retained sole ownership of all real estate, personal property and “intangible” property they owned prior to the marriage. The prenup also said that if they ever got divorced, all property acquired during the marriage would be split 50-50, but there were significant exceptions to that provision. In addition, they agreed to discharge any claim to alimony, support or any other types of rights “incident to” the marriage or divorce.

Earl filed for divorce in 2010. When the case was pending in court, he asked for a ruling declaring that the prenup governed every possible issue in the divorce except custody, parenting time and child support.

Christine opposed this motion, arguing that the terms of the prenup were “unconscionable,” because after 20 years of marriage it operated to deprive her of any real part of the marital estate. In other words, the terms were so unfair and one-sided as to “shock the conscience of the court.” Because of that, she argued, the contract should be voided and their marital estate should be divided fairly, or subject to what’s known as “equitable distribution.”

The divorce judge ruled in Earl’s favor, deciding that the prenup wasn’t unconscionable, and, more importantly, that Christine had waived the right to equitable distribution under state law by agreeing to a clear, unambiguous prenuptial agreement.

But the Michigan Court of Appeals reversed the decision. Specifically, the court ruled that a court always has the power to engage in equitable distribution if circumstances are extreme enough to justify it.

A case out of Virginia also shows that courts may disregard blatantly unfair prenups.

In that case, Mark McKoy of Norfolk, who was a wealthy residential real estate investor, struck up a relationship with a Spanish-speaking woman in the Dominican Republic. Eventually the woman, Glenys, became pregnant with Mark’s child and the two made plans to marry.

But before the marriage, Mark sent Glenys — who had an 8th-grade education, spoke limited English and whose sole work experience was selling lottery tickets — a prenup stating that Mark’s assets had been fully disclosed to her and that she was waiving the right to any future disclosure of assets. The prenup also deprived her of the right to share in any property he brought into the marriage or any property he acquired during the marriage. It further stripped her of the right to alimony, maintenance or spousal support. Glenys signed the agreement before moving to the U.S. to marry Mark.

After six years of marriage, Mark filed for divorce and asked the court for exclusive possession and use of the marital home and denial of spousal support to Glenys.

The judge ruled against him, deciding that even though Glenys signed the agreement voluntarily, there was such a gross disparity in bargaining power that the prenup shouldn’t be enforced. Now Glenys will have the opportunity to seek both spousal support and an equitable division of property.