Fox Family Lawyers
Cynthia Moseley Fox
Attorney at Law
7751 Carondelet Avenue,
Suite 700
Clayton, Missouri 63105
(St. Louis)

Pre-Nuptial Agreements Can Be Invalidated In Various Ways

Last week’s column dealt with pre-nuptial agreements as a way to determine before the marriage what will happen should the marriage end in divorce. Typically, these agreements cover issues such as how the marital property would be divided up, what happens to any separate property brought into the marriage, and whether either party will be obligated to provide maintenance (i.e. alimony) to the other.


However, a pre-nuptial agreement can also be used to insure that someone’s property is passed along to their children, rather than to their spouse, in the event of their death. This comes into play when someone marries who already has children. If that person dies without a will, the surviving husband/wife is entitled under Missouri probate law to 50% of their deceased partner’s property, and 50% goes to any children born of the deceased spouse.


Most people think that their will can direct their property to their children…the ones they brought into the marriage. What they don’t know is that the will can be challenged after their death by their spouse. As a result, the best way to insure that your children receive what you intend them to have is via a pre-nuptial agreement with your husband or wife.


By the way, if you are already married and reading this but don’t have a pre-nuptial agreement, don’t despair. Although much less common, post-nuptial agreements are legal in Missouri and can have the same force of law if entered into “freely, fairly, knowingly, understandingly, and in good faith and with full disclosure”, which is the basis in Missouri for determining if a pre-nuptial (or post-nuptial) agreement is valid.


If in reading this you have concluded that these agreements provide a high degree of certainty about how a marriage will be dissolved, I must disabuse you of that notion. These agreements are often contested at the divorce trial because one of the parties no longer likes the outcome. And, any competent attorney should advise their client that there is no guarantee that the pre-nuptial will be found to be valid, that it will be interpreted in the way one or both of the parties intended, or that it will even be enforced.


Having said all that, what can a couple do to increase the chances that their agreement will be upheld? First, each should be represented by separate counsel. This will help assure the court that the agreement was entered into “knowingly, understandingly”. Second, the court is typically suspicious of agreements that are negotiated and/or signed immediately prior to the marriage because this can be considered coercive.


Both parties must fully disclose their income, assets and debts. The easiest and best way to attack these agreements if it is found that one or both parties failed to disclose a material portion of their financial situation. Further, the agreement cannot be found to be unconscionable—that is, manifestly unfair to one of the parties. For example, in McMullin v McMullin, 1996, the court invalidated the pre-nuptial agreement as unconscionable because it kept the wife from sharing in any of the marital property.


Even though there are various criteria for determining the validity of these agreements, the court will not save you from your own stupidity. There are numerous cases in Missouri where one spouse has waived his/her rights despite the strenuous objections of the family, friends and their attorney. In Lippic v Lippic, 2003 and Darr v Darr, 1997, the court upheld pre-nuptial agreements in which the wife waived rights to alimony, and even some marital property because the wife had signed the agreement despite being advised by multiple attorneys not to do.