Ella Rice: How to Break a Prenuptial Agreement

If you signed a prenuptial agreement before you were married, you may be wondering what impact it could have on your divorce. And, if you recently perused the old document and gasped halfway through, then exclaimed, “They can’t hold me to that!” you’re probably hoping for a way out.

Breaking a prenup – the process of having a court invalidate the document and free you from its terms – can be difficult, but it’s certainly not impossible. The court considers evidence that might prove one of five bases for invalidating a prenup:

Fraud — A court can throw out a prenup if you were fooled about its contents. This is possible in cases where a foreign-born spouse does not have a mastery of English or is told there’s no need to read before signing. If the document undervalues your spouse’s wealth so that you are deceived about the value of property rights you are signing away, that is also fraud.
Coercion, duress or lack of capacity — A party must enter into a prenup willingly. Conditions that rob a party of free will, such as emotional pressure or physical threats, invalidate the contract. Also, if a person does not have the capacity to understand the consequence of signing, the contract is not valid.
Errors of formality — Utah law requires a prenup to be executed with all the formality a property deed requires to be recorded. Careless errors, vague and ambiguous language, and problems with the document’s execution can render it void and unenforceable.
Lack of representation — If spouses did not have separate attorneys representing them prior to signing, the court will give a prenup extra scrutiny to make sure the document treats parties fairly.
Unconscionable terms — A court expects any contract to treat each party fairly. When a prenup is so lopsided that one party gets all the benefits while the other makes all the sacrifices, the court could decide that enforcement is unconscionable. A judge can invalidate an offending part or the whole agreement.

Not Ready to Get Married? Learn How to Protect Yourself When You’re Cohabiting in Utah

Deciding to live together is a big step in a relationship. You make a commitment that feels similar to marriage. Unfortunately, you do not receive the automatic legal protections that you do through a marriage. For example, Utah inheritance laws provide protections for each spouse that is not available to unmarried partners. In addition, divorce is governed by a body of laws that direct the distribution of assets, payment of financial support and allocation of debts — a process that does not apply to cohabiting couples. You can, however, protect yourself through estate planning tools, real property statutes and contract law.

Negotiate a cohabitation agreement

You form a financial partnership through your cohabitation in addition to your romantic relationship. Just as you would not conduct a business transaction without a contract, you should not commingle assets with your life partner without negotiating a written agreement. A cohabitation agreement is similar to a prenuptial agreement. The contract protects your assets and your financial security should you break up or your partner die. Terms of your contract may address:

Division of personal property you acquired during your relationship
Satisfaction of the debts you incurred during your relationship
Rights to your residential lease
Allocation of real estate equity accrued during the relationship
Return on investment you made in real property or a business
Continued financial support

Buy property as joint tenants with right of survivorship

The manner in which your real property is deeded determines conveyance rights of each owner. Property deeded as joint tenants with right of survivorship gives you and your partner full interest in the entire property — meaning you receive full ownership in the property if your partner dies.

Use Some Estate Planning Tools

If you die without leaving a last will and testament, succession laws determine which relative receives your property. You can protect your partner by drafting clear provisions that bequeath your assets to each other. In addition, you can transfer ownership of your assets to a trust that names your partner as a beneficiary upon your death.

Free Consultation with a Divorce Attorney

If you have a question about divorce law or if you need to start or defend against a divorce case in Utah call Ascent Law at (801) 676-5506. We will help you.