Are You Stuck with Your Prenup?

When you got married, you took the solid advice of your peers and created a prenup. The idea was that this would cut down on the fighting and legal wrangling if your marriage ended in divorce and protect both of you. Now that the worst scenario has happened and you are getting a divorce, you or your spouse might want to get out of that prenup. 

Your prenuptial agreement was created to avoid precisely the problem you might be facing right now. The goal was to negotiate all the financial details of a split before you got married so that if you did end up in divorce court, everything could be handled swiftly and quietly. However, the truth is that your prenup may, in fact, not be valid or could be overturned because it's no longer fair.

The first thing a court is going to look at when considering your prenup is whether it was executed and filed correctly. When you're in love, you do crazy things. Steven Spielberg and Amy Irving foolishly wrote their prenup on the back of a napkin. If your prenup is not a written legal document that is properly witnessed and signed, it will not hold up in court. It's also essential that each person had separate and independent counsel advising them. If one of you didn't consult a lawyer, there's a good chance the prenup could be thrown out. 

If you're trying to end your marriage with an annulment because it's important to you on a personal or religious level, your prenup is not going to apply to a legal annulment. An annulment determines that you were never legally married, and the prenup applies to your marriage only. You'll have to pick one or the other – annulment with no prenup or divorce with the prenup. 

A prenup that tries to control child support or child custody is not going to be enforced because the child is a ward of the court, and those issues have to be determined based on the situation at the time of the divorce. It's tempting to try to use your prenup as a contract for your marriage and include provisions to control things like spousal weight gain, frequency of intimacy, and household rules. For the most part, none of that is going to hold up in court and could result in the entire thing being invalidated.

Another key consideration is how honest you both were at the time you created the document. For a prenup to be valid, both parties have to give full financial disclosure at the time they enter into it. You can't know what's fair if you don’t know both what you're going to be dividing. This applies to assets, but also debts. Transparency is essential in a valid prenup. 

Some of the tricks that could be involved include not only hiding assets but undervaluing assets or overvaluing debts to make it seem like there will actually be less to divide. Mistakenly "forgetting" to include assets is another ploy that will result in a prenup landing in the trash can. Any indication that disclosure wasn't full or honest can put your entire prenup into question. 

A prenup that was not entered into freely is not going to upheld. If there was any kind of duress or pressure, then that person couldn’t make an independent decision. For example, if a prenup was drafted close to the wedding and there was pressure to get it signed in time, this could be considered duress. Imagine the embarrassment that would ensue if the wedding had to be postponed while the terms were worked out. This sense of urgency makes it hard to negotiate fairly. Marla Maples reportedly received her copy of the prenup with Donald Trump just five days before their wedding. Not surprisingly, she walked away with more than the agreement stated. Both spouses have to thoroughly read it before signing it as well. You can't consent to something you didn't read. 

Fairness is an important consideration for the court. If a prenup gives the bulk of the assets to one person, the court is going to be on alert that there is a problem. Robert DeNiro's prenup came under question when it was revealed he's worth $500 million, and the prenup gave his spouse only a $6 million apartment, $500,000, and alimony of $1 million per year. 

Similarly, a prenup that leaves one spouse with a majority of the debt would be considered likely unfair. What's fair at the time you sign the prenup may not be reasonable at the time you get a divorce, so be aware that significant increases or decreases in wealth can be the signal that your prenup won't hold up as originally written.

If you're going to contest a prenup, it means that all of the details of your current assets and debts and their value are going to be laid bare in court for the judge (and the world) to see, so keep that in mind if you're considering it. This might give you extra negotiating power, or make you want to settle quietly. 

You always have the option to renegotiate your prenup and put what's called a postnuptial agreement into place. The postnup can be agreed to at any point during your marriage, and its terms will supersede the prenup. If you're faced with a prenup that might not be valid, or one you think is unfair, get a move on this before you talk about divorce with your spouse. 

A prenup is a great tool when it's entered into fairly and intentionally, but it can be a frustrating framework when it isn't fair or your circumstances have drastically changed. 


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.

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