Several cases in Missouri have set forth the requirements that courts look for in determining whether a prenuptial agreement is valid.
The case In re Marriage of Thomas, 199 S.W.3d 847, 862 the wife challenged the validity of the prenuptial agreement because she felt she didn’t have any choice but to sign the document if she wanted to get married. The court rejected her argument that she signed the agreement under duress because she had time to review the agreement and hired an attorney to review the document. This case set out the requirements regarding the execution of a prenuptial agreement in Missouri:
“-To be valid and enforceable a prenuptial agreement must be entered into freely, fairly, knowingly, understandingly, and in good faith with full disclosure. This requirement has been interpreted by the courts to involve a subjective evaluation of the fairness surrounding the execution of the agreement. Factors which courts have considered relevant include the signatories’ access to independent counsel, the amount of time available to revise the agreement, the bargaining positions of each spouse in terms of age, sophistication, education, employment and experience, and whether their assets were fully disclosed. The fairness of the agreement must be determined as of the date of the agreement”
“Prenuptial agreements will be upheld and will dispose of issues of property division unless found to be unconscionable. An agreement is unconscionable when the inequality is so strong, gross, and manifest that it must be impossible to state it to one with common sense without producing an exclamation at the inequality of it. Conscionability..means protection against onesidedness, oppression or unfair surprise. Binding parties to the provisions of a prenuptial agreement only if the agreement was conscionable and fairly made provides protection to the unwary and ill-informed spouse."
“At trial, the burden of proof on the issue of validity of the prenuptial agreement rests with the party seeking to invalidate the agreement.” The validity of a pre-nuptial agreement is governed by rules that are unique and are distinct from the requirements for the execution of an ordinary contract. This is particularly true in terms of consideration. A prenup agreement requires more consideration than that necessary for a simple contract, in that the consideration moving to the spouse or prospective spouse surrendering marital rights must be fair and equitable in the particular circumstances."
"There are two aspects to unconscionability: procedural unconscionability and substantive unconscionability. The former deals with the formalities of making the contract, while the latter deals with the terms of the contract itself. Procuedural unconscionability in general is involved with the contract formation process, and focuses on high pressure exerted on the parties, fine print of the contract, misrepresentation, or unequal bargaining position. Substantive unconscionability refers to an undue harshness in the contract terms. The courts look to both procedural and substantive unconscionability in determining whether a contract or clause can be voided.
In the Potts v. Potts case the divorcing husband owned a roofing company of substantial value. In this case the wife saw the prenuptial agreement for the first time 3 days before the wedding and it was signed the day before the wedding. The wife testified that she did not sign the agreement in front of a notary, she had no legal training and no one with legal training had explained to her the meaning of the document.
More importantly, the prenuptial agreement essentially gave all of the assets to the husband if he simply titled the marital assets in his name, which he did. The trial court ruled that the prenuptial agreement was unconscionable and unenforceable. The appellate court agreed finding that the short time the wife had to review and consider the document created procedural unconscionability. Substantive unconscionability was also found because the husband came into the marriage with assets that would generate future assets and he could title all the future assets as separate property.
In Short v. Short, the wife was the one with substantial assets, and after a 30 year marriage the husband challenged the validity of their prenuptial agreement. The trial court found the agreement to be valid and enforceable and the appellate court agreed. In this case, the husband had sought out a lawyer to review the agreement but the lawyer was too expensive and he could not afford to pay the lawyer. Then the husband simply decided to sign the agreement because he loved the wife and wanted to marry her. The court found that the husband first received the document 4 days before the wedding, and that that was sufficient time for him to review the agreement. Further, at the time of the wedding the husband was in medical school and wife was a nurse, so their age, sophisitication, education, employment, and experience were relatively equal.
In McMullin v. McMullin, the wife was first presented with the prenuptial agreement the night before the wedding. Additionally, the agreement was very one-sided, giving husband almost all marital property and it waived all potential maintenance (alimony) for the wife. The court found the agreement was unenforceable because it attempted to strip the wife of her rights to marital property. The court also found the agreement did not satisfy the full disclosure requirements because although the husband revealed his assets, he did not place a value on those assets.
Prenuptial agreements are an effective way to protect assets but the requirements for an enforceable prenuptial agreement in Missouri are detailed. If you believe you might need a prenuptial agreement, you probably do, and it’s important you contact a family law firm familiar with these detailed requirements. Call the Men’s Center for Domestic Resolution at 816-287-1530 for a consultation to discuss whether a prenuptial agreement is the best option for your situation.
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