Family Law

How a Prenuptial Agreement Changes the Divorce Process

By Joseph Pandolfi, Retired Judge
Learn more about prenups and how they can affect divorce proceedings.

The procedure for getting divorced is pretty straightforward, no matter what state you live in. One spouse files a petition ("complaint") requesting the divorce, and the other spouse usually files a response ("answer"). This is followed by an exchange of information about various aspects of the marriage, which is part of the divorce discovery process. If the couple can't resolve all of their divorce-related issues, they'll end up in trial, where a judge will decide the issues for them. But adding a prenuptial agreement (prenup) to the mix usually alters the normal flow of events.

The Nature of a Prenuptial Agreement

A prenup is a legal contract between a couple that intends to marry. Some of the items it may contain are:

  • a listing of each person's individual assets
  • an indication of which individual assets will remain the exclusive property of each spouse in the event of a divorce
  • a determination of how property acquired during the marriage will be divided in a divorce
  • an understanding as to responsibility for debts, and
  • limits on spousal support (alimony) if the marriage should fail.

These topics would normally be decided in a divorce, if there were no prenup.

How a Prenup Can Aid Divorce Proceedings

In all likelihood, the prenup has already resolved some of the issues that you'd usually be discussing as part of the divorce. There are some obvious benefits to this. For example, you may need less discovery, particularly regarding items handled by the agreement. And, it could help to reduce tension, as well as lessen the need for court intervention in handling problems as the divorce moves forward. As a result, the attorneys and the court don't have to do as much as they normally would to resolve the case. This is obviously a good thing, since it should cut down on legal fees and allow the process to move along at a faster pace.

So much for the good news. The bad news is that a prenup can sometimes muddy the waters.

The Downside to a Prenup in Divorce

The most common example of a prenup negatively impacting a divorce is when one of the spouses asks the court to reject the agreement. There has to be a legitimate reason for this; but therein lies the problem. In order for a court to determine whether the prenup is valid, a judge will have to review all the circumstances surrounding the preparation and signing of the agreement.

For a prenup to be valid, it has to meet certain criteria. For example, the agreement must be in writing and free from fraud (like a spouse intentionally failing to reveal assets or income). Likewise, the spouse contesting the agreement must not have been under duress, coerced, or mentally incapacitated (such as under the influence of drugs or alcohol) when the agreement was signed. Additionally, the agreement can't be "unconscionable," meaning grossly unfair (such as where upholding the agreement would leave one of the spouses destitute). These are just some of the factors a court will look at in deciding whether a prenup is enforceable.

However, getting the court the facts it needs to make this decision is going to require more discovery. Now, in addition to obtaining the usual information regarding finances and parenting issues that existed during the marriage, the attorneys are also going to have to dig into what happened before the marriage. They'll be looking at anything (including phone conversations and emails) that could shed light on the couple's understanding of the prenup process, as well as their state of mind at the time the agreement was negotiated and ultimately signed.

All the additional work required because of the prenup—and one spouse contesting it—is likely going to result in a significant increase in legal fees. And, it may prolong the divorce process itself.

If you have questions about your own case, you should contact a local divorce lawyer for advice.

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