By Dan Exner
In general, the court must uphold a premarital agreement unless the agreement is “inequitable.”
Where I practice, a prenuptial agreement is inequitable if it fails to satisfy any one of the following requirements:
1.) each spouse made a fair and reasonable disclosure to the other of his or her financial status;
2.) each spouse has entered into the agreement voluntarily and freely; and
3.) the substantive provisions of the agreement dividing the property upon divorce are fair to each spouse.
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Courts judge the voluntary factor in the second requirement by weighing whether each party was represented by independent divorce lawyers, whether each party had adequate time to review the agreement, whether the parties understood the terms of the agreement and their effect, and whether the parties understood their financial rights in the absence of an agreement.
The equitable natures of the first and second requirements are judged at the time of the agreement’s execution and not at the time of divorce or legal separation.
The third requirement may be re-assessed at the time of divorce or legal separation if there has been a significant change in circumstances since the execution of the agreement.
The court will start with the presumption that the agreement is valid, and it will be the contesting party’s job to prove its “inequitable” nature.