By: Smith Law October 31, 2020

How a Prenuptial Agreement Changes a Divorce

What is the divorce process?

The process itself is pretty simple. One spouse files a petition to request the divorce, then the other spouse files a response to the petition. After that, each party exchanges information about different parts of the marriage to try to come to a resolution. If the couple has a difficult time resolving their divorce issues, then they will end up in trial where a judge will make a decision for them. However, when a prenuptial agreement is involved, it can change the typical flow of events.

What is a prenuptial agreement?

Prenuptial agreements—or, “prenups”—are legal contracts signed by a couple who plans on getting married. What is included in a prenup can vary from couple to couple, but some of the most common things include:

A list of each person’s assets
A thorough plan for where each asset will go in the event of a divorce
A guide for how assets and property acquired during the marriage will be divided in case of a divorce
An understanding about how to handle debts, and
Limits on alimony, or spousal support, if the marriage should not succeed.

These things are usually decided anyway during divorce proceedings if there is no prenuptial agreement.

How can a prenup help divorce proceedings?

Most of the time, prenuptial agreements will resolve any issues that are normally discussed over the divorce process. This is quite beneficial, as you may need less time during the discovery process, particularly when it comes to items already listed in the prenup. Also, this contract can help alleviate some of the tension that can come with a divorce. When you and your ex have already made these decisions in writing, it’s much harder to go back on your word. In the end, it can save you quite a bit of money in legal fees, since the need for court intervention will likely be lessened. Your divorce will likely be much faster than if you were to not have this agreement in place.

Are there any downsides to a prenuptial agreement in a divorce?

The most common example of a prenup becoming an issue in a divorce is when one of the spouses requests that the court reject the agreement. However, there needs to be a legitimate reason in order for this to work. And, of course, that requires a judge to take a look at all the circumstances that surrounded the initial drafting and signing of the agreement. In order for the prenup to be considered valid, it has to meet specific criteria.

The agreement must be in writing and free from fraud. In other words, a spouse who neglects to disclose income or assets could be found guilty of fraud in these instances.
The spouse contesting the agreement must not have been under the influence of drugs, alcohol, or mentally incapacitated in any way when the agreement was signed.
The agreement can’t be wildly unfair, or “unconscionable.” This would be the determination if upholding the agreement would leave one of the spouses destitute.

Of course, there are other factors the court will consider, so do not consider this to be an exhaustive list.

However, the court needs more facts in order to make a decision about the validity of the prenup. For example, they will need to get the usual facts about the finances and parenting arrangements of the marriage, but they will also need to dig into life before the marriage happened. The court will look at anything that may indicate whether or not the couple fully understood the prenup process, including emails and phone conversations. This additional work and time will often mean an increase in legal fees and a longer divorce process.

Smith Law

If you are looking for assistance with your divorce, we would be happy to provide legal counsel. Contact us today to learn more and schedule your consultation with one of our divorce lawyers. We look forward to working with you!