Why Don't Prenuptial Agreements Always Hold Up?

By Jim Warren


Part of our practice at Warren Family Law is devoted to helping families proactively plan for the events of separation and divorce, in the hope that these events never come to bear.  We help clients execute what are called prenuptial (you’ll often hear “prenup” as short-hand) and post-nuptial agreements. As their names imply, we execute the former in advance of the wedding, while the latter occurs after the wedding.

There are several reasons, however, that these agreements don’t always hold up when it comes time to enforce them within the framework of a separation and divorce. Let’s take a look at a few of these reasons why prenups and post-nuptial agreements may sometimes fail.

Fraud or Lack of Full Disclosure

Perhaps the easiest way to lose any case in front of any judge is to litigate based on a contract that you entered under false pretenses. One of the top reasons why prenuptial agreements are invalidated by the courts is that one party fails to give full disclosure of their pre-marital assets and obligations. Sometimes this omission is out of neglect, but at other times, it’s meant to hide their true net worth and defraud their soon-to-be-spouse of monies that the court may otherwise determine that they are entitled.

Unconscionable or Unenforceable Provisions

The courts like to see prenups that are reasonable and clear in their outline of the conditions of the agreement. You can’t place some kind of crazy clause with embedded provisions that no one could reasonably meet, such as prescribing a certain frequency of intimacy, or should have to meet, such as maintaining a certain level of fitness or weight management. The courts would rather see provisions related to more normal marital misconduct as a prohibitive behavior to receiving the prescribed settlement.


As with many other types of contracts, judges want to know that the parties to the prenup or postnuptial agreement were of sound mind and under any stress, coercion, or undue influence when negotiating and executing the contract.  If a woman, for example, can prove that her soon-to-be-husband found a way to make her to sign a prenup against her free will, the agreement will be rendered invalid with haste.

Failure to Meet Provisions

This one is obvious, but we should still cover it. As long as the provisions of the agreement are reasonable, if you don’t keep them, then you likely won’t be able to enforce your prenup with your spouse.  If one side commits fraud by making misrepresentations relied upon by the other side in order to enter the agreement—and those provisions aren’t kept—then the agreement will obviously be invalid and unenforceable.

Inclusion of Non-Applicable Aspects of the Marriage

A final common mistake we see upon litigating prenups and postnuptial agreements is the inclusion of non-applicable areas of the marriage, especially with regard to child support and custody.  As you may recall from reading earlier articles on this blog, judges take their role of looking after the best interests of children quite seriously, and many states, like North Carolina, have guidelines for determining and enforcing child support. Thus, when you’re including provisions regarding the children—often unborn—in your prenup, you’re creating provisions that are not enforceable.

If you’ve entered into one of these agreements and need the help of an attorney to determine your rights in a separation and divorce proceeding, we are here to help. At Warren Law, we believe that everyone should have vigorous representation, and we will fight for your rights and put your best future in front of you.