Stephen J. Buhler, Attorney at Law

When is a prenuptial agreement not enforced?

The beginning of a new marriage can be an emotional time for Salt Lake City residents. Much planning goes into seemingly every minor detail of the wedding, including choosing a venue for the ceremony and reception, hiring photographers and others and working with both families to coordinate the event.

Amidst all this planning, many couples choose to engage in another type of planning as well - entering into a prenuptial agreement to lay out how the couple's assets will be divided in the event of a divorce. While it may seem awkward at first to plan for a potential divorce while the couple is planning the wedding itself, many spouses have realized there is wisdom in entering in prenuptial agreements to provide certainty and peace of mind in the event a divorce later occurs.

Not all prenuptial agreements are created equally, however. If certain procedures are not followed, the agreement itself can later be declared unenforceable by a court.

For instance, if one side did not voluntarily enter the agreement, it will not be enforced. As with any contract, the prenuptial agreement must be entered into willingly and voluntarily, because valid consent is required to form the contract.

Likewise, if one side did not reasonably disclose his or her property or financial obligations to the other, the agreement may not be enforceable. This can amount to fraud when one of the parties to the agreement simply has no knowledge of what they are signing, while the other party knows but does not make proper disclosure.

There are also certain provisions of the agreement that typically are not enforceable. For example, parties typically cannot eliminate alimony or child support obligations in these agreements. Accordingly, parties should be aware of what can and cannot be included in prenuptial agreements if they want the agreements to be fully enforceable.

Source: Utah State Legislature, "Enforcement," accessed on Nov. 7, 2015

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