Eleven-Day Prenup, No Counsel, and a Child Support Waiver That Cannot Stand

Two-part structure. Most courts ask (1) whether the agreement was procedurally fair at execution - voluntariness, disclosure, opportunity to consult counsel, time to review, sophistication, absence of duress - and (2) whether it is substantively fair, measured at execution and, in a minority of states, at enforcement given intervening circumstances.

Procedural fairness is the strongest attack. Eleven days, a 14-page document, no counsel, no permission to take it home, an explicit waiver of disclosure, and a $14 million versus $18,000 disparity. A recital that the parties "waive disclosure" is not a wand: the waiver must itself be knowing and voluntary, and a party cannot knowingly waive what she has no idea exists. Argue the timing alone made independent advice practically impossible.

Duress is the weaker theory. There was no threat or coercion in the classic sense; pressure from an imminent wedding is usually insufficient standing alone. Pair it with overreaching instead.

Substantive unconscionability. A near-total property waiver plus $2,000 per month for three years, after nine years of marriage and two children, is the core of the claim. At enforcement, Wife's lost earning capacity and the length of the marriage sharpen it.

Burden. This is where cases are won. Once Wife makes a prima facie showing of unfairness or nondisclosure, the proponent - Husband - typically must prove voluntariness and fair disclosure. Confirm the allocation under the operative statute; if the burden sits with Wife throughout, the evidentiary plan changes substantially.

Child support: void. Child support belongs to the child, not to either parent, and cannot be bargained away. The court applies the guidelines regardless of the agreement and may modify upward or downward on the statutory standard. Expect the provision to be severed as against public policy without invalidating the rest - but check whether the agreement contains a severability clause, because courts have refused to save agreements as a whole where the offending term was central.

Spousal support: contestable. Enforceable only if Husband carries the fairness burden. If the court reaches enforcement fairness, three years of $2,000 per month to a woman who left the workforce for a nine-year marriage with two young children is a strong unconscionability argument.

Business: depends on the fairness ruling. Absent an enforceable agreement Wife has an interest in the community/marital portion of the business; with one, she has the $2,000 stream. This is the highest-value issue in the case.

Residence: mixed. Titled in Husband's name, but the mortgage was serviced from joint funds for nine years. Even where title controls, many courts recognize a reimbursement or contribution claim, or a marital interest in appreciation and principal reduction. Preserve both theories; do not concede that title resolves the issue.

Severability effect. If the child support term is severed and the remainder upheld, Wife gets very little but avoids an outright loss on appeal. Plead in the alternative: unenforceable in whole; unenforceable as to specific terms; enforceable but subject to a contribution claim.

Plead it affirmatively. Unenforceability is a defense and often a claim for declaratory relief; put it in the answer with specificity about timing, counsel, disclosure, and disparity, so the court and the appellate record frame the issue as procedural plus substantive unfairness rather than a generalized complaint.

Ask for a bifurcated evidentiary hearing on validity first. Enforceability determines the scope of discovery and valuation: if the agreement falls, the business and residence are on the table; if it stands, an expensive valuation is wasted. Many courts will hear validity before the financial trial, and this sequencing decision is often more consequential than any single examination.

Discovery targets. Husband's net worth statement and financial records contemporaneous with signing; drafts and redlines of the agreement; the drafting attorney's file and billing records; communications with Wife about counsel; who scheduled the signing; whether any disclosure was offered and refused; and whether Wife had access to any account statements. The drafting attorney represented Husband, so no attorney-client privilege shields the file as to Wife - but expect work-product objections and be ready to move to compel.

Witness list. Wife on the signing meeting, the refusal to allow review, and her lack of knowledge of the assets; Husband on what he knew she did not know; the drafting attorney on the rushed timeline; and an expert on what Wife gave up and on her diminished earning capacity after nine years out of the workforce.

Preserve parallel arguments. Even if the agreement is enforced, the court retains authority over child support and usually over attorney fees; do not let enforcement of the agreement be treated as a waiver of those requests.