Is Your Prenuptial Agreement Unfair?

 Posted on October 04, 2016 in Family Law

In today’s world, more and more couples are drafting and executing prenuptial agreements before they walk the down the aisle. While each couple may have their own reasons for doing so, there are certain cultural trends that have made such agreements more necessary now than perhaps ever before. Research shows that young people are waiting longer to get married, which means that each partner is likely to have accumulated wealth or property prior to marriage, creating the need for financial discussion ahead of time.

Similarly, those who are considering getting married for the second or third time are well served by a prenuptial agreement. In these situations, a prenuptial agreement can be used to secure financial matters and to protect the inheritance rights of children from previous relationships.

Keeping It Reasonable

While a prenuptial agreement can cover a wide variety of economic and lifestyle concerns, it is very important for the agreement to be reasonably fair to both parties. Of course, a couple heading for marriage would want to be fair with one another, but fairness in a prenuptial agreement means more than that. An agreement that is found to be too unfair can actually be set aside by the court as unenforceable, meaning that the agreement loses virtually all of its binding authority.

Unconscionability

According to the law, if a prenuptial agreement is too one-sided or stands to put one party at too much of a disadvantage, it may be deemed unconscionable. This could lead to the entire document being found unenforceable, If the agreement included a severability clause, however, a court could set aside only the unfair portion and enforce the remainder of the agreement.

Lifestyle Clauses

Certain elements of prenuptial agreements have seen an uptick in recent years, including lifestyle and infidelity clauses. These provisions are usually meant to deter specific types of behavior, such as cheating, by providing financial incentives for compliance. Some lifestyle clauses, however, may be seen as unconscionable if they go too far. For example, if your agreement specifies that a single act of marital infidelity—of course, infidelity is also difficult to define objectively—would cause you to forfeit your entire portion of the marital estate, a court may find such a clause to be unconscionable. It would likely seem even more unfair if your spouse was not subject to the same terms.

Assistance for Prenuptial Agreements

If you are thinking about getting married and have questions about prenuptial agreements, contact an experienced Lombard family law attorney. Call A. Traub & Associates for a confidential consultation today.

Sources:

http://www.abajournal.com/news/article/no_cheating_lifestyle_clauses_gain_popularity_in_prenups/

http://www.forbes.com/sites/jefflanders/2014/03/13/can-a-prenup-or-a-postnup-with-an-infidelity-clause-deter-a-husband-from-cheating/#5893c7ea7d6b