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Could a prenuptial agreement be unenforceable?

On Behalf of | Sep 17, 2021 | Prenuptial Agreements |

The primary purpose of a prenuptial agreement is to determine what marital assets each spouse receives if they should divorce. It may also include provisions regarding ongoing payments for support. From a public policy perspective, these contracts prevent litigation and give both parties to a marriage clarity that they can rely on.

There are some instances in which a prenuptial agreement may be contrary to basic public policy principles and legally unenforceable. Here are some possible reasons why a person may challenge an agreement’s validity.


If someone failed to disclose all assets or income, it may not have been possible for his or her spouse to make an informed decision about financial matters relating to their marriage. Understandably, material misrepresentation or omission about finances at the time of a prenuptial agreement may invalidate it.


In general, contracts with terms that give rise to extremely inequitable outcomes may be unenforceable according to the legal concept of unconscionability. An agreement that causes unjust hardship to one spouse while another has excessive wealth may be inherently unconscionable.


A contractual obligation has a binding effect only if a person enters into it voluntarily. A court could find that a person entered into an agreement involuntarily if he or she was deprived of the opportunity to review it or the other party to an agreement threatened some form of imminent harm.

Virginia’s Premarital Agreement Act does not mandate any form of consideration as a contractual requirement for prenuptial agreements. Nevertheless, they must have all other essential elements of any contract in order to be valid and enforceable.


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