February 11, 2025

Prenuptial agreements can be a touchy subject. A lot of couples don’t like to think about the possibility of their marriage ending before they’ve even walked down the aisle, but it is one of the smartest decisions you can make if you are bringing wealth into the relationship. You get car insurance hoping you’ll never be in an accident so you’ll be protected if you do. You get homeowner’s insurance hoping you’ll never face a catastrophic event so you’ll have the means to move on if it happens. Planning for a potential problem down the road doesn’t mean you want the problem to occur, but that you will be ready to face it if it does.

Having a prenuptial agreement is like that, but you might be wondering what happens if the prenuptial agreement you signed at the beginning of your marriage doesn’t fit your current situation when you’re ready to file for divorce.

The Prenup

A prenuptial agreement is there to protect both spouses by addressing issues that may become complex should asset division during divorce ever become a factor. While prenuptial agreements are often used in cases where one or both spouses are bringing significant individual assets into the marriage, they are also valuable for those who are entering second marriages, business owners, those with complicated family situations, and even people with no current complex circumstances, but who have aspirations for business ownership or other interests that could become complicated. Essentially, a prenuptial agreement takes care of asset division and protects certain assets from being included.

Changes in Circumstances

A lot of prenuptial agreements address your current financial status, assets, and circumstances. For example, if one spouse brings a significant amount of assets into the marriage, a prenuptial agreement can assure them that they will leave the marriage with those assets intact. The reality is that things can change during a marriage that can affect the prenuptial agreement.

• Financial status: Some financial growth is expected and should be addressed in the original agreement. But if one or both spouses experience a substantial change in their financial situation, acquire significant assets, or have a major change in finances, either hardship or success, a modification may be necessary.
• Children: Plans for children can be difficult to predict. If there are no provisions in the agreement relating to custody, support, or responsibilities, these may need to be amended after birth or adoption of children.
• Lifestyle: If circumstances have significantly changed your lifestyle since the original prenuptial agreement was signed, both parties may agree to modify the prenup.

Can a Prenuptial Agreement be Modified?

In short, yes, but the answer is a little more complex. Modifying a prenuptial agreement is handled the same way as the original drafting of the agreement. Both parties must agree to modify it, should have separate attorneys to represent their interests, and the drafting and signing process must be followed to make the agreement legal. It’s a good idea to look over the agreement periodically to make sure nothing needs to be changed. In general, a prenuptial agreement cannot be modified once the divorce process has started unless it is determined that the agreement is fundamentally unfair and both spouses agree to modify the agreement together rather than risking a judge invalidating the agreement.

Can a Prenuptial Agreement be Invalidated During the Divorce Process?

If you didn’t modify your prenuptial agreement prior to your divorce, there is the potential that your agreement could be invalidated during the divorce process. There are a few factors that can lead to the agreement being contested or nullified. The first is if one spouse was pressured into the agreement and not given the opportunity to consult with an attorney. If one spouse can prove that they were forced to sign the agreement under duress, the agreement may be considered unconscionable and can be invalidated. If the prenuptial agreement didn’t meet the legal requirements of being in writing and signed voluntarily, it will obviously not be enforceable. Similarly, if it has been found that one spouse committed fraud by knowingly misrepresenting their financial situation or assets, the prenup will likely be invalidated. In these circumstances, one spouse has done something ethically wrong, and a legal agreement signed with one party in an unfair situation can be straightforward for a judge to determine.

Things get into more of a gray area when changed circumstances are the main concern for the validity of the agreement. If circumstances have changed to the point where the agreement heavily favors one spouse over the other and would make the enforcement unfair or unreasonable, a judge may consider invalidating the agreement. If your agreement is invalidated, asset division will move forward as if there was never a prenuptial agreement to begin with, with the court determining if the settlement is fair to both spouses.

We Never Got a Prenuptial Agreement. Is it Too Late?

By definition, a prenuptial agreement is something that both spouses will agree upon before marriage. However, if you are already married and want to protect your interests in case something happens later, a post-nuptial agreement is a possibility.

Postnuptial agreements are handled similarly to prenups. They need to be fair and reasonable to both parties, need to be entered into voluntarily by both parties, and need to fully disclose the financial situation and assets. Having a good attorney is essential if you are considering a postnuptial agreement.

Life is full of twists and turns, and your prenuptial agreement should be able to adapt along the way. While it’s designed to protect both parties, changes in financial status, family dynamics, or lifestyle can make revisiting and possibly modifying the agreement a wise decision. The key is open communication, fairness, and ensuring the agreement reflects your current circumstances.

Whether you’re considering a prenup, facing questions about modifying an existing one, or exploring a postnuptial agreement, having knowledgeable legal guidance can make all the difference. Preparing for the unexpected isn’t about expecting failure—it’s about setting yourself up for success, no matter what the future holds. If you’re filing for divorce, or going through a divorce and need legal representation, contact my office today.