One important advantage of having a prenuptial agreement is that it can help a divorce proceed more smoothly than it likely would if some basic financial matters hadn’t already been agreed to.
If that divorce you may have thought would never actually occur is becoming a reality, one of the first things you want to do is review that prenup. These don’t “expire” (unless you included a sunset provision). That means the terms of your prenup are still valid unless you or your spouse challenges them.
What can make a prenup unconscionable?
There are a number of things that could make one or more provisions of a prenup invalid – particularly if it wasn’t prepared by a legal professional and both parties didn’t have their own legal representation. In some cases, a prenup can even be ruled “unconscionable.” What does that mean?
“Unconscionable” is a term that can be applied to any contract. It means that one or more provisions of it are grossly unfair to one of the parties who signed it. Even if it wasn’t when the contract (in this case, a prenup) was signed, ensuing circumstances may have made them unreasonable.
For example, if one party agreed not to seek a share of any marital assets despite California’s community property law and the couple has amassed millions of dollars over the years, that provision could be deemed unconscionable. Provisions that should never have been included, like requirements around appearance or even infidelity, are widely considered unconscionable and invalid.
If you’re considering ending your marriage, your spouse is or you’ve both agreed that it’s the best way forward, it’s important to get a legal review of your prenup as you start thinking about what your goals are for the divorce.