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What makes a prenuptial agreement unenforceable?

On Behalf of | Apr 25, 2023 | Firm News

Most people executing a prenuptial agreement before marriage do so with good intentions. They want to ensure that both of their financial interests are protected should they divorce.

But some people execute a prenuptial agreement with more malicious motives. This malicious intent may be hidden from the other party or disguised as good intent when in reality they want to ensure they come out the “winner” should they divorce.

Prenuptial agreements created under such conditions may be deemed unconscionable and thus unenforceable.

Virginia Code

The Virginia Code states that a prenuptial agreement cannot be enforced if it was unconscionable at the time of its formation. A prenuptial agreement is unconscionable if prior to, and at the time of execution, (1) there was not fair and reasonable disclosure of property or financial obligations and (2) the party seeking to have the agreement deemed unconscionable did not voluntarily and expressly waive such right to disclosure in writing.

“There is a two-step test that courts must apply in determining whether an agreement is unconscionable: ‘1) a gross disparity existed in the division of assets and 2) overreaching or oppressive influences.’” Chaplain v. Chaplain, 54 Va. App. 762, 773 n.4, 682 S.E.2d 108 (2009) (quoting Galloway v. Galloway, 47 Va. App. 83, 92, 62 S.E.2d 267 (2005)

Gross disparity

A prenuptial agreement might be deemed disproportionate if one spouse is allocated most of the marital assets in a divorce, even if the other spouse contributed to the acquisition of those assets or income earned from those assets.


Oppression in the execution of a prenuptial agreement is present in a variety of circumstances. Waiting until the last minute to execute the prenup and providing no time for review or legal consultation before signing may be considered oppression.

Hidden assets

In addition, the parties to a prenuptial agreement are required to make known all their assets prior to signing the agreement. This way both parties are aware of all assets on the table and can make informed decisions. Hiding assets can also make a prenuptial agreement unenforceable.

What makes a prenuptial agreement enforceable?

Ultimately, when executing a prenuptial agreement, both parties must fully disclose all their assets and debts. Each party must be given enough time to review the document and seek legal consultation before signing. And the prenuptial agreement cannot be so lopsided as to leave one spouse with nearly everything and the other spouse with almost nothing in the event of a divorce.