Many couples who are contemplating a second or third marriage are frequently advised to consider signing a prenuptial agreement. Such agreements are helpful in distributing the couple’s assets if the new marriage ends in divorce, but some pre-nups turn out to be grossly unfair toward one of the parties.
If this unfairness is discovered after the agreement has endured for several years, the party who suffers from the unfairness often seeks a way out. Fortunately, in Tennessee, the state provides several methods of escaping from an unfair pre-nup.
Failure to follow the formalities
In Tennessee, a pre-nup cannot be enforced if it has not been reduced to writing or was not signed by both parties prior to the wedding. Similarly, a pre-nup can be invalidated if the party against whom enforcement is sought did not read the agreement before signing it.
Also, the agreement will be declared invalided if the party against whom enforcement is sought did not have the opportunity to obtain review of the agreement by a knowledgeable attorney before signing the document.
Unfairness
This ground provides the most hope for the party seeking to defeat enforcement of the pre-nup.
If the agreement is found to be unconscionable in its treatment of one of the parties, most judges will declare the agreement to be invalid. In the context of a pre-nup agreement, the word “unconscionable” usually means “extremely unreasonable” to one party or unacceptably offensive to public policy.
If the party seeking to enforce the agreement did not make a complete disclosure of assets and liabilities before the agreement was signed, or made statements about assets that were false, a court is very unlikely to grant that party’s request for enforcement.
An experienced divorce attorney should be consulted before undertaking a challenge to a pre-nuptial agreement.