What Is a Prenuptial Agreement?

With approximately 50% of marriages ultimately ending in divorce, people, even when blissfully happy, are wise to consider and plan for how they want things to be resolved if things do not work out in the future. While it seems unromantic to plan for the possibilities of a marriage ending before it begins, most people do not have the ability to “start over” by failing to plan for their finances, particularly if the divorce occurs later in life.

What Should You Do if You’ve Signed A Prenuptial Agreement and You Don’t Want to Be Held to It?

Generally, the easiest way to invalidate a pre-nuptial agreement is to ask your spouse to sign an agreement negating it/holding it for naught. Of course, if you are going to go to this effort, it is likely a good idea to have legal counsel involved to assist with drafting a legally sufficient agreement. Even if the agreement says, for example, that the terms are non-modifiable, generally, the easiest way to invalidate a prenuptial is to ask your spouse to negate or nullify the agreement. Alternatively, you and your spouse could agree to make modifications to the agreement. Often, your “negotiating power” to invalidate a prenuptial agreement is strongest if you and your spouse are making life changes that could effect the outcome of any future, unplanned separation. For example if you and your spouse are contemplating having children and one of the partners becoming a stay-at-home parent or reducing their workload, it would be an appropriate time to revisit the prenuptial agreement.

If you feel strongly that the prenuptial agreement should be invalidated, you should raise it with your spouse. It is a delicate subject and the other person may understand your fears and concerns and be agreeable or, in some cases, a negotiation about a prenuptial agreement can devolve into conversations about divorce. If your spouse refuses to negotiate the terms of a valid agreement there is not a lot you can do about modifying it.

What are the Important Elements of a Valid Prenuptial Agreement?

Generally, it requires a full and complete disclosure. This is something construed very strictly against the person disclosing their assets. Failure to disclose one or more assets or potential financial interests is often enough to invalidate an otherwise valid agreement. Both parties need to ensure that they understand the legal ramifications of the agreement. Generally, this means that both parties have knowledgeable, competent legal counsel in place. Finally, during the course of the marriage, it is important that you continue to operate within the boundaries and guidelines of the prenuptial agreement. For example, some agreements have clauses or exceptions if one party has an extra-marital affair. It goes without saying that if your agreement has such a clause and you engage in extramarital affairs, you risk invalidating the agreement by your own actions.

If you are getting divorced, how will you know if the court is going to hold the agreement valid?

In some circumstances, you can file a motion for a declaratory judgment asking that the court hold the prenuptial agreement invalid. If you and your spouse do not plan to get a divorce but you institute litigation for the purpose of determining the validity of a prenuptial agreement, almost certainly, the frustration your spouse experiences by you instituting litigation will drive the situation into a divorce.

If you are not sure where you stand in relation to your agreement, probably the first step you should take is consulting with and hiring a knowledgeable and experienced family law attorney. Your attorney should be able to review the document/agreement with you, discuss the pros and cons of enforcing or invalidating the agreement and discuss the factors that might support enforcement versus invalidation.