Ketover & Associates, LLC
Ketover & Associates



Are Prenuptial Agreements Affected By Changed Circumstances?

Fundamentally, prenuptial agreements are a contract between competent adults, which should ordinarily be enforceable and not subject to modification. Unfortunately, prenuptial agreements are routinely attacked at the time when one party or the other seeks to invoke its terms.

Clients must therefore understand that contracts for goods or services are different than contracts between married people, or between those who plan to be married. Courts have created the quintessential loophole, enabling potentially endless modifications of family support provisions, regardless of whether they were ordered by the Court or stipulated to by the parties. The only requirement for this review is an unforeseen change of circumstances. Such contract-loosening changes are typically required to be unanticipated, substantial and non-temporary.

First, it is important to note that properly drawn prenuptial agreements are given the initial presumption of validity. ‘Properly drawn’ means that the parties were independently represented by counsel, that there was no coercion or duress, that there was an appropriate level of financial disclosure, and that the agreement was essentially fair.

At the time of attempted enforcement by one party, the burden of proof for showing that the agreement is somehow unconscionable is borne by the party seeking to avoid enforcement. Otherwise, the prenuptial agreement should be enforced.

Second, a prenuptial agreement should not be considered to be unconscionable unless it can be shown that enforcement of the agreement will result in a standard of living for any party that is far below that which was enjoyed before the marriage.

Third, clever divorce attorneys have come up with the idea of incorporating protective clauses into their prenuptial agreements. Such clauses can prevent alimony liabilities, or can ostensibly limit them in the event of divorce. To add yet another level of complexity, the restrictive clauses themselves can be the subject of a modification motion. As equivocal as this may sound, sometimes these clauses are enforceable, and sometimes they are not. When a prenuptial agreement is executed under circumstances devoid of coercion or duress the agreement should not be modified. The only exception would be under an unconscionability standard.

Given the multiple ways a prenuptial agreement can be challenged it is important for the client to seek sound legal representation. Spend the time and money drafting a solid agreement with a knowledgeable attorney now and save yourself bigger expenses and headaches in the future.

Harrison Baron