How much time must pass between the execution of a prenuptial agreement and the wedding of the parties in order for the agreement to be enforceable?

That was one of the issues raised in a recent Tennessee Court of Appeals case. The case involved a prenuptial agreement that was executed two days before the wedding. Husband was the instigator. He was “a wealthy, college-educated, and successful businessman.” Wife, on the other hand, was “20 years old, less than half Husband’s age, and a G.E.D. was the summit of her formal education.” Wife was also financially dependent upon Husband.

Tennessee law states:

… any antenuptial or prenuptial agreement entered into by spouses concerning property owned by either spouse before the marriage that is the subject of such agreement shall be binding upon any court having jurisdiction over such spouses and/or such agreement if such agreement is determined, in the discretion of such court, to have been entered into by such spouses freely, knowledgeably and in good faith and without exertion of duress or undue influence upon either spouse. The terms of such agreement shall be enforceable by all remedies available for enforcement of contract terms.

Although Tennessee law and policy favor prenuptial agreements, Tennessee courts do not simply rubberstamp their validity. Factors the court will consider in determining whether to uphold a prenuptial agreement include:

  • Transparency of circumstances surrounding the execution
  • Sufficient disclosure of property interests
  • Timing of execution in relation to the wedding date
  • Relative sophistication of the parties
  • Opportunity of parties to secure independent counsel

The Tennessee Court of Appeals invalidated the agreement. It focused on the timing of execution, Wife’s lack of independent counsel, and the sophistication gap between the parties.  In doing so, it made clear that in determining when a prenuptial agreement should be executed relative to the wedding, there is no hard and fast rule:

Not only is it not our intention to promulgate a bright line rule, it is impossible to do so. What must be considered is the interplay between all the relevant factors including the time factor and
the sophistication of the spouse being asked to sign the antenuptial agreement. The time element cannot be viewed in isolation. While it is not a direct linear relationship, the more sophisticated the spouse is, the less time he or she may well need in order to be able to enter into the agreement freely, knowledgeable, and in good faith without duress or undue influence. Conversely, the less sophisticated the spouse is, the more time he or she may need.

Source: Grubb v. Grubb, 2017 WL 2492085 (Tenn. Ct. App.)

Posted by Joel D. Roettger, JD, LLM, EPLS