This is a common question – Will my prenup hold up in court? The answer is not as straightforward as you may want to think, so let’s talk about it!
Will a prenuptial agreement made online hold up?
No legal contract is 100% guaranteed to “hold up” if contested in a litigated case, and this is true whether you use an attorney or not. Your goal should be to increase your chances of validity and enforcement by creating a prenuptial agreement that aligns with state laws and does not violate public policy.
In many states, hiring an attorney to represent you is a way of ensuring you understand the agreement you are entering into, and helps show the court that you understood your legal rights and the terms of your agreement prior to signing. If you have legal questions or want legal advice pertaining to your specific situation, you should consult with an attorney. HelloPrenup now offers discounted, flat-rate attorney services starting at $99. Check your HelloPrenup dashboard for more info.
How does HelloPrenup fall into this conversation?
Many couples use our platform as a way to create a draft of their prenuptial agreement before bringing that draft to an attorney for advice, review or revision. This keeps their total cost down, because they are bringing a full, agreed-upon draft to the attorney rather than having an attorney negotiate and draft the agreement from scratch.
Other couples choose to explicitly "waive their right to attorney representation." If using HelloPrenup, this means that within your generated prenuptial agreement you will have a dedicated section where you acknowledge that you had the *opportunity* to hire legal counsel, but decided against it.
If you have specific questions about the enforceability of your agreement or you want an attorney to review and advise on your prenup, you should take your prenuptial agreement to an attorney licensed in your state.
What does “holding up in court” mean, exactly?
Please note that is a general explanation of how a divorce process works, and does not represent the exact steps in any state, nor does the below constitute legal advice.
When we discuss the idea of a prenup “not holding up in court,” we are talking about a prenup that has been contested by either of the spouses in a divorce trial. The spouses have essentially said, we don’t agree on all the terms of the divorce, and we do not agree to abide by the prenup. If that is the case, a judge will need to step in, and usually in the form of a divorce trial, decide the fate of your prenuptial agreement.
Although there is no guarantee that a prenup will be enforced by a court if disputed in divorce litigation, it is becoming less and less common that they get “thrown out” if:
Both parties entered the agreement **willingly** and with **full disclosure of finances**, and
The prenup was created in accordance with **state requirements** for a valid prenup.
Again, in order for a prenup to be “thrown out” by a judge, the divorcing spouses would need to be engaged in divorce litigation, and would need to be contesting the validity of the prenup. This is an important distinction because many people think upon a divorce, a judge automatically decides whether or not the prenup is valid. This is not true. The enforceability of a prenup is up for debate when a divorcing couple does not agree to abide by the terms, and asks a court to interpret the agreement, or to invalidate or enforce the agreement. In many instances, a prenuptial agreement is effective in helping to avoid divorce litigation, because it acts as a layer of protection in the way of setting expectations prior to entering a marriage and a mutual understanding by the couple.
Want to learn more? Check out this article.
All content provided in this article is for informational purposes only. HelloPrenup, Inc. (“HelloPrenup”) makes no representations as to the accuracy or completeness of any information on this site. HelloPrenup will not be liable for any errors or omissions in this information nor for the availability of this information. These terms and conditions of use are subject to change at any time and without notice. HelloPrenup provides a platform for contract related self-help. The information provided by HelloPrenup along with the content on our website related to legal matters (“Information”) is provided for your private use and does not constitute legal advice. We do not review any information you provide us for legal accuracy or sufficiency, draw legal conclusions, provide opinions about your selection of forms, or apply the law to the facts of your situation. If you need legal advice for a specific problem, you should consult with a licensed attorney. Neither HelloPrenup nor any information provided by Hello Prenup is a substitute for legal advice from a qualified attorney licensed to practice in an appropriate jurisdiction.