What Makes a Prenuptial Agreement Unconscionable?

A prenuptial agreement is designed to protect both spouses in the event they decide to end their marriage. However, if a prenup is too one-sided or includes unfair or unjust provisions, it could be considered “unconscionable.” When crafting your prenup, it is crucial to understand what makes a prenup unconscionable so you can ensure yours is written in a way that maintains its enforceability.

Unconscionable agreement

Unconscionable prenups can be tossed out in court. Let’s begin by looking at an example of an unconscionable definition in a prenuptial agreement where the agreement was signed by both future spouses before their marriage: A man and a woman create a premarital agreement. The man is an Ivy League-educated lawyer who earns over half a million dollars annually at the time the prenup was written. The woman is an unemployed homemaker who was previously a single mother at the time the prenup was written. 

Their prenup stated:

• No property obtained during the marriage would be considered marital property
• If the couple divorced, the woman would receive up to $200,000 depending on how long they were married and how much more successful the man became
• The woman would be entitled to an expensive car and household furnishings
• The woman would not be entitled to alimony or spousal support
• Each spouse would be expected to pay their own attorney’s fees
• There would be limited child support awarded

When the marriage ultimately failed, the woman questioned the enforceability of the premarital agreement. Because there was a significant disparity in each spouse’s income and assets when they wrote the prenup, certain provisions resulted in an unconscionable contract. This includes the waiver of spousal support, the limit on child support, and how marital property was divided. In this case, the prenup was tossed out because, if the terms had been followed, each spouse’s financial situation would be “unjust.”

Premarital agreement (aka prenuptial agreement)

A prenuptial agreement is a type of legal document. A premarital agreement is a legally binding contract that determines how marital assets, property, and debts will be divided if your marriage ends. There are several other provisions that can be included in a prenup. Essentially, anything that would need to be worked out as part of your divorce settlement could be included in your prenup agreement.

Prenups are not only a good idea for the wealthy. In any situation where there may be a significant difference in income and assets, a prenup can help ensure both spouses have access to the finances they need to rebuild their lives post-divorce. It's highly recommended that each party involves separate legal counsel, specifically a family law attorney, in drafting your premarital agreement to ensure its validity and protect your interests in financial matters and more in the event of a divorce.

Separate property

Separate property refers to assets and debts that will remain yours if your marriage ends. Some examples of separate property could include:

• Gifts given directly to you
• An inheritance
• A business you had prior to getting married
• Money awarded specifically to you through a personal injury lawsuit

Community property

Community property refers to assets, property, and debts that you acquire throughout the course of your marriage. Some examples of community property you could include in your prenup are:

• Your shared home
• Any assets you acquired for the benefit of the marriage
• Assets from businesses that were created during the marriage
• Investments
• Real estate
• Income and bank accounts
• Vehicles
• Home furnishings
• Personal belongings

What is unconscionability?

The word unconscionable does not necessarily refer to unconscionable deaths or an unconscionable liar. Unconscionability, in the legal sense, refers to unfairness within a prenup. If there are one-sided provisions, ridiculous stipulations, or unethical demands, the family court system can either invalidate the included stipulations or consider the prenup completely void. The court determines whether a prenuptial agreement is unconscionable based on its provisions, focusing on several factors that could render it invalid, such as leaving one spouse dependent on the state for financial support or impoverished.

Unethical demands

Unethical demands are prohibited in prenups. They often include stipulations that are non-financial, such as infidelity or lifestyle clauses. An example of an unethical demand could be including weight restrictions in your prenuptial agreement.

Illegal mandates

If your prenuptial agreement includes an unconscionable clause that requires you to break the law, your prenup may be considered unconscionable and will likely be voided if challenged.

How to ensure that your prenup is conscionable

The best way to ensure your prenup is conscionable is by working with an experienced family law attorney. Your lawyer can ensure the prenup is enforceable by including provisions that benefit both parties, ensuring debts are allocated fairly, and that unfair or illegal provisions are not included. Consulting a local family law attorney is crucial to ensure your premarital agreement complies with state laws and to understand the implications of unconscionable provisions from a legal perspective.

Enforceability of a prenup

Premarital agreements can only be enforced if they are in line with state law. Prenups that unfairly favor one party will not be considered valid. If one spouse does not have a lawyer or did not read the agreement at the time it was made, that spouse may be able to challenge the enforceability of the prenup in good conscience. Changes in finances during divorce proceedings can also impact the enforceability of a premarital agreement, especially if those changes render the agreement unconscionable by leaving one spouse in a financially vulnerable position.

You can expect your premarital agreement to be enforced in court if both spouses had legal representation, properly disclosed their financial situations, and signed the prenup of their own volition.

Prenuptial agreement FAQs 

What are five things that cannot be included in a prenuptial agreement considering financial circumstances?

While prenup agreements can be deemed unconscionable, when trying to create a fair and reasonable prenup, there are certain stipulations that cannot be included. These include:

1. Daily household responsibilities
2. Whether alimony will be paid, and if so, how much
3. Child support requirements, or lack thereof
4. Child custody and visitation plans
5. Stipulations that may be prohibited under state or federal law

What makes a prenup unfair or a contract unconscionable?

A premarital agreement can be unfair anytime it favors one spouse over the other, or there is a disadvantage to one party. Some examples of clauses that may be considered unconscionable include:

• Limitations on child support
• Giving up your right to spousal support
• Losing the right to inherit from your spouse
• Being required to maintain a specific weight
• Limiting or demanding the number of children you may have
• Stipulations that require frequent sexual relations
• Being prohibited from participating in certain activities

What voids a prenup?

There are several instances in which your premarital agreement, also referred to as a premarital agreement, could be considered void. Most often, prenup contracts become void when one spouse does not fully disclose their assets or income. This disclosure also applies to debts. If your spouse fails to disclose financial accounts or hides debts, your prenup could be considered invalid on the grounds of fraud.

However, a prenup can also be considered void if, during the bargaining process:

• One spouse was coerced, under duress, or pressured into signing the prenup agreement, making it essential that the agreement be a written agreement signed willingly by both future spouses
• One spouse does not have the mental capacity or knowledge to sign a prenup and understand the stipulations included
• Either spouse does not have independent legal representation
• The premarital agreement was poorly drafted or improperly filed based on state prenuptial agreement laws or the Uniform Commercial Code

Prenup agreements will also be considered void if the terms are considered unconscionable. The judge handling your case will not care about the terms of the prenup as long as they are fair and reasonable to both parties. However, if the terms are absurd, the agreement is extremely unjust, or the prenup would cause significant financial hardship to one party, then the law finds it unconscionable and, therefore, void.

What is the loophole in a prenup?

When written by a professional divorce attorney, premarital agreements should not have a loophole. However, loopholes can be created if there is not a complete disclosure of the parties’ assets. If even one legitimate asset were omitted from the discovery process when drafting the prenup, even if it was left out accidentally, this loophole could void the prenup, meaning it would be difficult or impossible to enforce.

Failure to follow premarital agreement procedures could also be considered a loophole. For example, if your prenup stipulates that you keep your family home, but you continue to make payments on the house from a joint checking account, your spouse may be entitled to a marital claim on the property.