Un-Signing a Prenup

Posted on Jul 13, 2020 by Katie Carter

I talked last week about cases where a prenup is already signed (spoiler alert: YES, it IS a big deal!). The gist of it is that, in any case, a legal contract like a prenuptial agreement or a separation agreement exists in order to modify the law, and to make specific conditions apply to the case that may or may not be the ones prescribed by law.

Without a prenup, the law is designed to treat property earned, purchased, or acquired during the marriage as marital property, which is to say that it’s the joint property of the husband and wife. Like a business, a husband and a wife basically become a partnership under the law, and then, during a divorce, that property is divided between the two. It doesn’t matter who earned it; the law makes that particular distinction more or less irrelevant. If it’s marital property, in general it’s divided roughly 50/50.

Unless, of course, you’ve signed something that changes or adjusts the rights that you have under the law. A separation agreement could do it, but so could a prenuptial agreement. What’s the difference? A separation agreement is an agreement you negotiate and sign when a separation and divorce is pending; a prenuptial agreement is one you sign before the marriage takes place.

There’s a distinct difference in the amount of bargaining power that spouses (or potential spouses) have in these situations. Once you’re married and just negotiating the separation agreement, you’re at much less of a disadvantage (though if you earn less, are a naturally meek person, or have committed some fault or other there may be a distinct disadvantage then as well) than you would be if you were having to negotiate a prenup before you married.

If your potential partner wants you to sign a prenup, it’s likely because he has more, which means you stand to benefit the most by marrying. It also means that he knows this, and that he’s interested in changing how the law applies to YOUR case.

I often hear, “Oh, he had more before we got married that he just wants to protect,” but that’s almost never the reason for a prenuptial agreement. Why? Because whatever you earned, purchased, or acquired prior to marriage is already separate under Virginia law.

There’s no need to hire an attorney or spend the money drafting up an agreement that gives you what the law already provides!

No, the goal of the prenuptial agreement is to change the way things that would be allocated to you – spousal support, a portion of the retirement, a portion of the earnings, real property, etc – will be divided in the divorce.

So, yeah, it’s important. And you should know what you’re signing beforehand. It’s a hard time, though. I’ll give you that. You’re high on undying love, and you trust your betrothed, why wouldn’t you? You’ll never get divorced, anyway. Not only that, but you stand to benefit the most by this marriage, so, on top of your love for him, you sort of also financially want this wedding to take place. And, besides, it’s really distasteful to write your vows at the same time that you’re arguing over how much support you will or won’t receive, or whether you’re entitled to any portion of the retirement earned during the course of your marriage.

So, what do you do about a prenuptial agreement?

In an ideal world, you participate. If your soon-to-be insists on a prenuptial agreement, and absolutely will not walk down the aisle without one (if I were you, I’d try to say no first!), I think the first and most obvious question is “Is he a man I actually want to marry anyway?”

You don’t have to marry him, and if he’s not willing to let any of “his” money help to provide you with support after your marriage ends or peace of mind before it, I’m not entirely sure this man is husband material. But, nevertheless, you’re a big girl, and you’re free to make whatever decision you feel you need to make.

If you’ve moving forward with negotiation of the prenup, participate. Negotiate. Ask questions. For goodness sake, read it! Make sure you understand, because once you put pen to paper it will be too late to change your mind or argue for any difference in the provisions.

Can I argue later that I signed it under duress, or that I didn’t know what I was doing?

Probably not. The circumstances under which you could use a defense like this are so incredibly narrow. It’s not because you don’t deserve some protection under the law; certainly you do. But, also, people signing contracts (in general, all contracts, not just people signing prenups) also are entitled to the benefit of the bargains they’ve made without others partially performing on their end and then defecting. It’s complicated, and there are a lot of moving pieces, but I can spare you some legal research – almost without exception, judges uphold signed agreements. Provided you are not insane or suffering under some other condition that meant that you couldn’t understand what you were doing when you signed, you’ll almost certainly be held to the bargain that you’ve made.

That’s not to scare you, but just to say that you should do your homework, read, negotiate, try to understand, and ask as many questions as you can before you sign something because it may prove much harder than you anticipate to undo your agreement later.

Even if you do have a reason, it’ll still take time, cost money, and involve litigation to contest the agreement. Really, it’s better to consider the agreement beforehand, and negotiate and sign a version that you can live with without assuming (probably wrongly) that there’s anything you can do on the back end to change it later on down the line.

For more information about prenuptial agreements, click here.  For more information about a consultation, to get information about our seminars, or to request a copy of one of our books, give our office a call at 757-425-5200.