Legal Professionals of Hirsch & Ehlenberger

What makes a prenuptial agreement ‘unconscionable’?

On Behalf of | Dec 9, 2023 | Prenups and Postnups

Starting a marriage while also planning for a possible split can seem oddly practical. For some, prenuptial agreements or prenups might stir up feelings of skepticism or anxiety. These feelings become especially true when financial matters are involved.

However, despite the initial unease, many couples acknowledge the importance of fully understanding the contents of this agreement. This understanding is part of ensuring that both parties are protected and that the agreement is fair and enforceable.

Factors influencing the enforceability of prenuptial agreements

In Virginia, the concept of “unconscionability” within prenups is based on whether the agreement is unfair or unjust. However, it’s crucial to note that an agreement is not necessarily unconscionable simply because it is uneven or favors one party. Inequality is not the primary factor when considering if the agreement is valid. The court may consider a prenup unconscionable if:

  1. One party signed the agreement because of intense pressure, force or manipulation.
  2. There was significant non-disclosure or apparent dishonesty about each party’s financial situation.
  3. One party did not have an attorney to go through the document with or a chance to get sound legal advice before signing the agreement.

The agreement outlines how the couple would address property division, spousal support, and other marital matters if they divorce. As such, couples should take this agreement seriously. Adequate time to consider these issues is necessary; otherwise, the agreement could be considered unconsionable.

Taking the time to review the agreement and think it through

Determining if a prenup is unconscionable can be complex. It often requires a case-by-case analysis. So, someone concerned about the potential unconscionability of a prenup may benefit from the help of an attorney. Involving one can protect the rights of both parties in the union. A lawyer can also ensure the agreement is legally sound and fair, making it binding according to the law.


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