This question came up recently: "I signed a prenup before we got married giving up my rights to my husband's assets, however I gave the past 15 years to raising my sons and taking care of our home and do not have any money to my name. What can I do now? Can I invalidate this old prenup?" -Y.L.
Drafting a prenuptial agreement is great, However, it will not always be accepted by the court, depending on the agreement itself (its validity) and the circumstances surrounding it.
Amongst other things, changed circumstances can invalidate a Prenuptial agreement.
The enforceability of a prenup can come down to “crossed t’s and dotted i’s.” Even the smallest of errors could render a prenup less than airtight.
There is a three prong test for determining enforceability of a prenup: (1) there was full financial disclosure; (2) that the party sought to be bound knew and understood the terms and conditions; and (3) that the agreement be fair and not unconscionable, i.e. that it not leave a spouse a public charge or close to it, or with a lifestyle far below what was enjoyed before or during the marriage.
Upon establishing a change of circumstances, a spouse may apply to the court for a modification of the agreement.
In summary, there is no type of prenup that always stays air tight and iron clad. If there is a substantial “change of circumstances” then most courts will reevaluate a prenup under the standard of determining if the agreement is reasonable. The most common change of circumstances is a health condition, a loss of a job, or a failed business. The family courts try to fair, and if a spouse’s fortune has deteriorated since the execution of the prenup, then most judges will reevaluate the agreement and assess whether justice can still be achieved if it is enforced.
You can always call us at Law Offices of Mindin & Mindin, P.C. to take a look at your prenup and for legal advice on how to proceed with your matter. You can reach us at 888-501-3292 or by clicking here.