A prenup may not be fair to both parties. Many times, the spouse who asks for the prenup has more money than the other spouse, and the entire goal is to protect that money. There is no way that is going to provide an even split.
However, there is an upper limit to just how unfair a prenup can be. When things go too far, so that the prenup is extremely slanted toward one party, the court may decide that it is unconscionable.
Granted, the standard is much higher than many people realize. Essentially, the court has to decide that no one who was not delusional would sign that type of prenup. It has to “shock the conscience and confound the judgment of any person of common sense.”
For instance, the prenup may not just protect the assets the one person has going into the marriage, but could actively take all of the other person’s assets, as well. If it says that 100 percent of all cash, real estate, investments and other financial assets go to one individual, leaving the other destitute and homeless, the court may not uphold the terms.
Why would someone sign a deal like that in the first place? Some people are so determined to get married that they will sign anything, simply hoping they can make the marriage last so that the prenup will never be needed.
Whether you are drafting a prenup or trying to decide if yours will hold up as you move toward divorce, it is important to know exactly what the court is looking for. Make sure you understand all of your legal rights.