Can a Prenup be Revoked or Changed During Divorce?
In an era where the divorce rate hovers close to 50 percent, it's crucial to understand how a prenuptial agreement functions – especially if you have one and anticipate getting divorced.
Prenups aren’t just for the rich and famous. They’re for any married couple who, before they tie the knot, agree to draft a legally binding agreement to help protect their assets, define financial responsibilities, and prevent disputes.
People often want to know if their prenup can be modified or changed after its creation. Read on for more information about prenups and divorce.
What is a prenuptial agreement?
First things first: What is a prenuptial agreement?
Simply put, it is a legally binding contract created by two people before they marry or enter into a civil partnership. This document primarily addresses the financial implications of their union. For example, it explores how assets and debts will be divided if their marriage ends.
Prenups can cover a wide range of financial aspects, from the protection of each party's separate property to the division of community property. It can also address issues of spousal support and estate plans. If one person wants to be guaranteed certain family heirlooms in the event of a divorce, a prenup offers a legal way to solidify that, too.
The primary goal of a prenuptial agreement is to provide clarity, protect individual assets, and minimize potential disputes over finances if the relationship ends.
What happens if you’re divorcing with a prenup
When a couple with a prenup decides to divorce, the prenup serves as a guiding document for the dissolution of their marriage. It outlines how their marital assets, debts, and other financial matters should be handled. This legal tool can simplify and expedite the divorce process.
Here's a closer look at what happens during a divorce with a prenup.
A typical prenup specifies how marital property will be divided between parties. This can include real estate, investments, retirement funds, and more. By predetermining the division of assets, the prenup can help avoid lengthy and costly court battles.
Just as with assets, a prenup can outline who is responsible for any debts accrued during the marriage. This can prevent one party from being unfairly burdened with debt following the divorce.
In some cases, a prenup may include provisions about spousal support or alimony. It may specify whether it will be paid, how much, and for how long. However, it's important to note that courts have the discretion to override these provisions if they deem them unfair or not in the best interest of the disadvantaged party.
Protection of separate property
If one or both parties entered the marriage with significant separate assets, a prenup can protect them from being divided in the divorce. This is particularly important for those with high net worth, business owners, and individuals with substantial inheritances or future earnings.
Can the terms of a prenup be changed?
Yes, the terms of a prenuptial agreement can be changed both during the marriage and during divorce proceedings. However, any modifications must be agreed upon by both parties and usually require legal documentation.
Prenup changes made during the marriage
The terms of a prenuptial agreement can indeed be modified during the course of the marriage, but any changes must be mutually agreed upon by both parties. This involves drafting an amendment to the existing prenuptial agreement where the specific changes are detailed.
The amendment should be written clearly and comprehensively. It should specify which clauses or provisions are being altered, added, or removed. Like the original prenup, it must be in writing and signed by both parties.
During divorce proceedings
Changes to a prenup can also occur during divorce proceedings, but this is less common and often more complex. Both people must agree to the changes, something that's often not possible during the emotional time of divorce.
The modifications must also be documented and approved by the court. If you’re in this situation, legal representation can help you make sure any changes are legally sound, fair, and in line with state family law.
Reasons a prenup might be invalidated
While prenuptial agreements are legally binding documents, certain circumstances can invalidate them or cause the court to disregard them.
Here are the most common reasons:
- Involuntary agreement: If one party can prove they were coerced or pressured into signing the prenup, it may be deemed invalid.
- Lack of legal representation: Both parties should have had their own legal counsel when the agreement was drafted. If one party didn't have access to independent legal advice, the prenup could be challenged.
- Fraudulent activity: If the prenup was established based on false information or hidden assets, it could be invalidated.
- Unfair provisions: If the prenup is excessively one-sided or imposes unfair terms on one person, a court may refuse to enforce it.
- Improper execution: For a prenup to be valid, it typically needs to be in writing, signed by both parties, and notarized. If these formalities aren't met, the prenup may not be upheld.
If you don’t have a prenuptial agreement, a postnup is another option. Read our article, Benefits of a Postnuptial Agreement, to learn more. Or, schedule a free 15-minute call with the friendly account coordinators at Hello Divorce.