It’s looking like 2021 will be the year you and your spouse finally end your marriage. You anticipate that it will be a rather straightforward process because the two of you have a prenuptial agreement.
However, when you dig it out of your files and look it over, you realize it has some provisions in that will leave you at a disadvantage. A lot has changed over the years. Maybe you were both on equal financial footing when you married. However, you stopped working to raise the kids while your spouse started a business that became highly successful. Perhaps you continued to climb the corporate ladder while your spouse seemed to be the victim of one layoff or corporate downsizing after the next.
You never got around to replacing your prenup with a postnuptial agreement (postnup) to recognize these changes. So what happens if your spouse insists on abiding by the prenup terms? Can you get all or part of it invalidated?
A judge won’t invalidate a prenup just because one spouse regrets it or finds that it’s not fair given their current circumstances. However, some issues can result in all or part of the agreement being invalidated. Let’s look at a few.
You were pressured to sign it and/or didn’t have time to read it
If you can show that your spouse and perhaps their parents put the document in front of you just before the wedding and said they expected you to sign it, you may have a case for invalidating the whole thing. That’s an extreme example, but if you felt pressured, it may be worth making the case.
Your spouse provided incomplete or false information
Prenups require complete, accurate disclosure by both parties of assets, debts and other financial information. If your spouse failed to do that, you could have grounds for nullification of the document.
Even if you knowingly agreed to everything in the prenup, if it’s grossly unfair (or “unconscionable”), a judge may throw all or part of it out. That’s why both parties to a prenup should have their own attorney. An attorney representing your interests probably wouldn’t let you sign away all rights to alimony, for example.
One of the first things you should discuss with the attorney representing you in the divorce is your prenup. They can help determine whether any or all provisions can be challenged.