Back to Top

Challenges Involving Prenuptial Contracts

Issues of Voluntariness

A prenuptial agreement (often referred to as a “prenup”) is subject to the same basic principles that govern contracts for business transactions, except that marital contracts generally do not require an exchange of valuable consideration to be formed.

In general, a contract is valid if the parties voluntarily assent to its terms. However, when a contract is the product of undue influence—such as fraud or duress—the contract may be unenforceable. This principle also applies to marital contracts like prenuptial agreements.

If a prenup resulted from the intentional misrepresentation of material facts for the purpose of getting someone to agree to it, it is considered to be the product of fraud and unenforceable.

To prove that a prenup resulted from fraud, the party seeking to challenge itvoid enforcement must prove the following elements:

  • Material misrepresentation
  • Knowledge of falsity
  • Intent to induce agreement
  • Detrimental reliance

If a prenup was entered into under duress, it would also be unenforceable. “Duress” involves situations where a person was coerced into signing a contract to avoid harm to themselves, their reputation, or their property. Duress can include a situation where a person feels as if they had no choice but to sign the prenuptial agreement handed to them at the last minute in order to proceed with a wedding that had long ago been planned and paid for.

For example, if one party is pregnant, they may feel that they have no choice but to marry the other parent because they do not have the resources to take care of the child themselves. While signing a prenuptial agreement while pregnant does not categorically result in an unenforceable contract due to duress, it can be a factor that strongly suggests an absence of voluntariness in light of surrounding circumstances.

Unconscionable Contracts

The enforceability of a prenuptial agreement is called into question when considering the substantive terms of the contract and the circumstances under which it was executed. If the enforcement of a contract would be unfair—such as where one party greatly benefits from the deal than the other—a court can hold the agreement as “unconscionable.”

Courts typically view the issue of unconscionability in two distinct but related parts: “procedural unconscionability” and “substantive unconscionability.”

A contract is considered procedurally unconscionable if there was a disparity in bargaining power between the parties such that the party with a weaker position had no realistic alternative than to accept the other’s terms.

Although many contracts often involve a disparity in bargaining power between the parties, significant differences in the sophistication of the parties, their respective financial conditions, and their susceptibility to becoming dependent on their soon-to-be spouse, may strongly suggest that a prenup is procedurally unconscionable.

A contract is considered substantively unconscionable if a reasonable person would not accept its terms under the circumstances. If the terms of a contract are considered so one-sided as to “shock the conscience” of a reasonable person, it is considered to be substantively unconscionable.

Using an extreme example, if a prenuptial agreement required a party to waive their rights to 100% of the marital property, it would be considered substantively unconscionable. So, parties can agree to a disproportionate division of assets or liabilities in the event of a divorce, but an agreement that is too one sided and doesn’t pass the “smell test” could end up being invalidated.

Concerns Involving Immigration Law

When a person is motivated to enter into a marriage for immigration reasons, the enforceability of a prenup is highly suspect. A person seeking to immigrate to the United States on a visa for foreign spouses of U.S. citizens naturally has a weaker bargaining position. As a result, the prospective immigrant might feel that they have no choice but to agree to any terms, no matter how oppressive they would be.

Conversely, the terms of a prenup could endanger the immigrant spouse’s chances of obtaining Lawful Permanent Resident (LPR) status—known commonly as “green card” status. When the foreign spouse of a U.S. citizen applies for an immigrant visa, the United States Citizenship and Immigration Services (“USCIS” or simply “CIS”) heavily scrutinizes the validity of a marriage.

It is not uncommon for a USCIS agent to ask about a prenup when discerning valid marriages from “sham marriages” entered into for the purpose of circumventing federal immigration laws. If the terms of a prenup call the sincerity of the parties’ motivations for getting married into question, a USCIS agent might use it as evidence that the marriage is invalid for immigration purposes.

Furthermore, a U.S. citizen sponsoring the immigration of their prospective spouse must sign an Affidavit of Support. This creates a contract between the U.S. government and the sponsoring spouse, whereby the spouse affirms that they have the means of supporting their spouse at 125% of the federal poverty level.

Importantly, the sponsor’s obligation to support the immigrant spouse does not end upon divorce. This means that any spousal support provisions in a prenuptial agreement contrary to the obligation created by an Affidavit of Support are unenforceable.


In summary, prenups are highly advisable and common sense in today’s day and age. It is understandable that even bringing up the prospect to your fiancé of signing one is uncomfortable. Nevertheless, it can save you a lot of trouble and money down the road. The last thing you want to do is bring up the touchy subject and spend money on having the prenup drafted only to find out later on that it isn’t enforceable. As such, the following tips should be followed:

  1. Start by talking to an experienced family law lawyer well before you plan on getting married to understand what a prenuptial agreement entails and what it can, and cannot, accomplish for you.
  2. Provide your fiancé with a complete and accurate disclosure of your assets, debts and income as well as any other relevant financial details, such as bankruptcies, tax issues, support orders from prior cases, pending lawsuits, etc.. Not only will this specifically identify what you’re bringing into the marriage as your separate property, but it will prevent her from arguing that you hid something from her and thus the prenup is unenforceable.
  3. Encourage your fiancé to consult and/or hire her own attorney to negotiate and explain the prenuptial agreement to her. In some cases we have even recommended that our clients pay the fees for that lawyer to prevent their fiancé from arguing that she didn’t know what she was signing or participate in the drafting of the agreement.
  4. Start negotiating and drafting the prenuptial agreement at least 3 to 6 months prior to the wedding.
  5. Be reasonable in what you expect the prenuptial agreement to accomplish. The more one sided the deal is the more likely it will be deemed unenforceable. Protecting your pre-marital assets and barring alimony are certainly reasonable goals whereas a provision that you will keep everything you acquire after the marriage won’t hold up in court.
  6. Follow your attorney’s advice on how to conduct business after the wedding to avoid invalidating the prenuptial agreement. This could involve commingling or spending your pre-marital property that the prenup had laid out as your separate asset.

Consult the American Divorce Association for Men (ADAM) for Legal Representation

If you have further questions or concerns about issues related to a prenuptial agreement, you should contact the American Divorce Association for Men (ADAM) for legal advice. Backed by years of family law experience, we can protect you and your family’s interests.