How to Nullify a Prenuptial Agreement

Prenuptial agreements are entered into to provide a complete resolution as to how the financial aspects of a marriage will be handled if there is ever a divorce. The agreement is meant to be one that lasts for the entire marriage and becomes operational upon divorce. However, it is not uncommon at the time of divorce for one spouse to decide the agreement is unfair or that they don’t think they should be held to its terms. Nullifying a prenuptial agreement is possible in certain circumstances.

What Is a Prenuptial Agreement?

A prenuptial agreement is a contract entered into by two people before they are legally married. The contract sets out the couple’s decisions for how they will decide financial matters should their marriage end in divorce.

In New York, a prenuptial agreement can determine all of the following:

  • Child custody (with oversight of the court at the time of the divorce)
  • Child support (again, with oversight and approval of the court at the time of divorce)
  • Designation and definition of separate and marital property
  • Disposition of the couple’s assets in their wills
  • Division of marital assets and debts
  • Maintenance (alimony)

Prenuptial agreements allow couples the freedom to set their own terms for their divorce. Prenuptial agreements may include benchmarks or escalation clauses, making maintenance available, or increasing the amount of maintenance or property transferred based on how many years the couple remains married and/or how many children they have together.

Predetermining all of these issues streamlines any potential divorce and provides the couple with peace of mind that they have a failsafe plan should the marriage end. Both partners can move forward knowing they will be treated fairly if they choose not to remain together.

Postnuptial Agreements

Postnuptial agreements serve the same purpose as prenuptial agreements and contain the same types of provisions. The only difference is that they are entered into after the marriage has been legalized, not before. A postnuptial agreement could be created at any time during a marriage, from within days after the wedding to within days of filing for divorce.

When Is a Prenuptial or Postnuptial Agreement Invalid?

Prenuptial and postnuptial agreements must meet strict requirements to be enforceable in New York state. These agreements can be found to be invalid in the following seven circumstances:

  1. The agreement is not in writing. An oral agreement is not enforceable in New York. There must be a written document.
  2. The agreement is not signed by both spouses. Both parties must sign it. If the signatures are not on the document, it is not enforceable.
  3. Fraud was involved in the signing of the document. This could occur if, for example, a spouse was not shown the entire document before signing or pages were changed out after signing. If the person did not know they were signing a prenuptial agreement, that would also constitute fraud.
  4. Fraud was involved in the financial disclosure. It is common for the parties to make a complete financial disclosure to each other before entering into a prenuptial or postnuptial agreement. New York does not require financial disclosure, but if financial disclosure is made, it must be honest and not involve fraud. Fraudulent disclosure could lead to the agreement being invalidated.
  5. Coercion or duress was involved in the signing of the document. If one spouse was pressured or threatened into signing the document, it is not enforceable. A common example of this is being presented with the prenuptial the morning of the wedding and being told if it’s not signed, the ceremony can’t go forward.
  6. Both spouses did not have their own attorneys review the document before signing. The couple should not rely on one attorney to draft and execute the document. They should each have their own independent counsel review it before signing. The lack of independent counsel does not automatically invalidate the agreement but causes the court to closely scrutinize the document for fairness.
  7. The agreement is not fair and equitable. Even if both spouses freely agree to the prenuptial agreement, the court can nullify it if it is not fair. It is important that the agreement considers the statutory and judicial standards for property division, maintenance, child custody, and child support and provides an agreement that is fair in light of those standards. Couples are free to make their own agreements, but one that drastically deviates from these standards will be closely scrutinized.

Other Ways to Void a Prenuptial Agreement

If, during their marriage, a couple decides they want to change the terms of their prenuptial, they can destroy it and have the option of entering into a postnuptial agreement that will take its place. If they have a postnuptial agreement, they can destroy that and have the ability to create a new one.

A key factor to keep in mind is that a prenuptial agreement is only enforced if it is presented to the court. If a couple decides to divorce, there is always room for negotiation. The couple together may reach an alternate agreement on how to dispose of their marital assets and handle custody, child support, and maintenance. The prenuptial agreement need never be submitted to the court and can be destroyed by the agreement. The couple can instead submit a settlement agreement. Alternately, the couple could agree to destroy the prenuptial agreement and go to trial to resolve the issues in their divorce.

Prenuptial agreements offer the best way to avoid an expensive, time-consuming, and public divorce process. However, it is important to seek skilled legal counsel if you believe your prenuptial agreement is invalid, unfair, or was entered into through fraud or duress.


Dror Bikel

Dror Bikel co-founded Bikel Rosenthal & Schanfield, New York’s best known firm for high-conflict matrimonial disputes. A New York Superlawyer℠ and twice recognized (2020 and 2021) New York Divorce Trial Lawyer of the Year, Dror’s reputation as a fearsome advocate in difficult custody and divorce disputes has led him to deliver solid outcomes in some of New York’s most complex family law trials. Attorney Bikel is a frequent commentator on high profile divorces for national and international media outlets. His book The 1% Divorce - When Titans Clash was a 5-category Amazon bestseller.

To connect with Dror: 212.682.6222 | [hidden email] | Online

For media inquiries or speaking engagements: [hidden email]