When you are just beginning in your legal career, drafting a prenuptial agreement for a client may seem like a relatively easy task. Your firm may already have templates or drafts with boilerplate language to pull from, and your client may be happy with a cut-and-paste job. Clients usually do not understand the nuances within contract law, and therefore may not be aware that not all prenups are enforceable. The strength of a prenup is only tested when one party seeks to enforce the agreement. Even a facially valid prenup can be attacked on the basis of enforceability. This article will discuss several common defenses to enforceability, and how to draft a prenuptial agreement that not only contemplates these defenses but protects against them.

North Carolina Law makes it relatively easy for couples to enter into a prenuptial agreement. Almost no formalities are required. In fact, a prenuptial agreement does not require consideration to be binding.[1] North Carolina requires only that the prenup be in writing and signed by both parties,[2] and that both parties possess the capacity to enter a contract[3] and are the age of majority.[4]

While it may seem easy to draft a prenup, not all premarital agreements are created equally. Drafting a watertight prenup first requires knowing where to look for leaks. A solid understanding of common defenses against enforceability will aid in drafting a prenup that will hold up, even when challenged. This article addresses four major ways to attack the enforceability of a prenup: 1) the agreement was not entered voluntarily; 2) the agreement is unconscionable; 3) the agreement violates public Policy; and 4) inadequate financial disclosures.

The Prenup Must be Entered Voluntarily

A facially valid prenup with no latent errors or deficiencies is useless if the party against whom enforcement is sought did not enter into the agreement voluntarily. The agreement must be executed voluntarily to be enforceable.[5] A party can show that the prenup was not entered voluntarily if they can show fraud, duress, misrepresentation, or undue influence.

Fraud is difficult to establish. The elements of fraud in N.C. are: i) false representation or concealment of a material fact; ii) which is reasonably calculated to deceive; iii) made with intent to deceive; iv) did in fact deceive; and v) resulting in damage to the injured party.[6]

Duress and undue influence are both proved through a totality of the circumstance test. Because there are no specific set of elements to prove either defense, the facts showing duress or undue influence may vary. The timing of a prenuptial agreement can significantly impact its enforceability. Courts may scrutinize agreements signed under pressure, such as the “shotgun wedding” scenario when one party is presented with the prenup shortly before the wedding. This can give rise to claims of undue influence or duress – especially if one party issues an ultimatum, conditioning the marriage on signing the agreement at the last minute. To reduce the risk of such challenges, both parties should have ample time to allow sufficient opportunity to consult with an attorney of their choosing prior to the review and signature, and certainly the wedding.

The Prenup Must Not be Unconscionable

Unconscionability, as with fraud, is difficult to prove. Unconscionability can be demonstrated by a showing that: i) the agreement was unconscionable when executed; ii) before execution, the other party failed to provide a fair and reasonable disclosure of his or her property and financial obligations; iii) the party against whom enforcement is sought did not waive additional disclosure; iv) that party did not have or reasonably could not have had an adequate knowledge of the property and financial obligations of the enforcing party.[7] This is a higher burden than showing that the agreement was not entered into voluntarily.

Timing is difficult, as unconscionability must be present at the time the agreement was executed. A disclosure and/or waiver of financial disclosure protects the agreement from an unconscionability argument. As with duress and undue influence, the opportunity to review the prenup and consult with independent counsel may be sufficient to avoid the application of an unconscionability defense.[8]

The Prenup Must Not Violate Public Policy

What about those pesky alimony waivers? North Carolina has adopted the Uniform Premarital Agreement Act, which allows parties to “contract with respect to . . . [t]he modification or elimination of spousal support.”[9] Prior to the adoption of the UPAA, North Carolina law held that a waiver of alimony or spousal support was against public policy.[10] Because there is not a large body of case law addressing prenuptial agreements and public policy, the drafting attorney should err on the side of caution when considering what terms to include. While waiver of alimony is authorized by statute, tread carefully with other provisions. For example, an agreement about when to divorce would likely violate public policy.

There Must be Adequate Financial Disclosure

Lack of financial disclosure and/or waiver can be a basis to overturn a prenuptial agreement.[11] If there is a disclosure and/or waiver, this aspect of a prenup can still be attacked on the basis of fraud, meaning that the disclosure itself was fraudulent or included misrepresentations. To avoid enforceability challenges based on adequate financial disclosure, ensure that all assets and debts are disclosed prior to the parties signing the agreement. If that isn’t possible or desired, a clear waiver should help protect the client from future challenges.

Summary

While prenups may seem easy to prepare and execute, the terms included must be carefully considered to prevent issues with enforceability. Always ensure that both parties have the time and opportunity to consult with independent counsel before signing, ensure that there are no ultimatums or time constraints that would give rise to a defense of undue influence, and ensure that all assets and debts of the parties have been adequately disclosed. Although harder to spot, stay on the lookout for signs that one party is committing fraud or misrepresenting the state of their finances to the other, and encourage open and honest disclosure. Consider a waiver of disclosure or a provision that acknowledges that both parties are entering the agreement voluntarily, are satisfied with the financial disclosures, and have had adequate time to consult with independent counsel.

Olivia Lane is a family law attorney practicing at Sullivan & Hilscher Family Law in Raleigh, NC, working alongside the nation’s experts in military divorce and pension division. She was admitted to the North Carolina Bar in 2024 and enjoys writing articles for recently licensed attorneys and fresh graduates who are just breaking into the world of family law. She may be reached at [email protected] or 919-832-8507.

[1] N.C. Gen. Stat. §52-B-3

[2] Id.

[3] N.C. Gen. Stat. § 52B-3 official comment (“As required for any other contract, the parties must have the capacity to contract in order to enter into a binding agreement. Those persons who lack the capacity to contract but who under other provisions of law are permitted to enter into a binding agreement may enter into premarital agreement under those other provisions of law.”)

[4] N.C. Gen. Stat. §52-10.

[5] N.C. Gen. Stat. §52B-7(a)(1).

[6] Long v. Long, 119 N.C. App. 500, 505, 459 S.E.2d 58, 62 (1995).

[7] From the official comment to N.C. Gen. Stat. § 52B-7: “The test of “unconscionability” is drawn from Section 306 of the Uniform Marriage and Divorce Act (UMDA) (see Ferry v. Ferry, 586 S.W.2d 782 (Mo.1979); see also Newman v. Newman, 653 P.2d 728 (Colo.Sup.Ct.1982).”

[8] Overton v. Overton, 242 N.C.App.252(2015) (regarding a separation agreement, the party did have opportunity to review agreement, and nothing precluded party from seeking counsel) (unpublished.)

[9] Muchmore v. Trask, 192 N.C. App. 635, 640 (2008) (holding that the UPAA, as adopted in North Carolina, provides that parties may eliminate or modify spousal support rights.)

[10] Id.

[11] Tiryakian v. Tiryakian, 370 S.E.2d 852 (1988) (upheld trial court decision to void antenuptial agreement; note there was no counsel involved for Wife.)

August 4, 2025/by FamilyLaw