A prenuptial agreement is meant to be fair to both parties. That’s why it’s crucial that each one has their own legal representative participate in drawing it up or at in reviewing it before it is signed.
This can help ensure that if it’s ever needed, all or part of it won’t be ruled invalid by a court. One reason this may happen is if a prenup is determined to be “unconscionable.”
That term can apply to any type of contract that is determined to be grossly unfair to one of the parties. Unconscionable contracts are typically not enforceable – or at least the unfair provisions aren’t.
Elements of unconscionability
While there is no specific definition of an unconscionable contract, there are recognized “elements of unconscionability.” These include:
- Unreasonable terms that give one party more rights and benefits than the other
- Lack of transparency, such as deceptive, vague or confusing clauses that can be misinterpreted
- Imbalance of power between the signing parties
- Coercion or duress used to get a party to sign
The last two are why too many prenups may be considered unconscionable. The provisions in the document itself may not exclusively favor one party. However, if one party had access to teams of financial, tax, real estate and legal professionals while the other didn’t have the resources to consult anyone before signing the prenup, that’s an imbalance of power.
Further, if one party, their family or their business partners pressured the other to sign the prenup, that’s coercion. Even if a prenup is presented to someone when it’s too late to back out of the wedding without considerable financial loss and embarrassment, that could be considered coercion.
If you believe you may be dealing with an unconscionable prenup – whether you have or haven’t yet signed it, are years into a happy marriage or are preparing to divorce – it’s wise to have it reviewed by an experienced legal professional. You don’t have to be held to the terms of an unconscionable document.