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On Second Thought...: Challenging Antenuptial Agreements

Antenuptial agreements (also called prenuptial agreements) are contracts and are typically used to protect assets that an individual brings into a marriage. Without such agreements, state law sets general rules for such things as dividing property or awarding spousal maintenance (also called alimony). An antenuptial agreement can alter these rules, and change what each party is to receive upon divorce or death of a spouse.

It is not uncommon for couples to enter into antenuptial agreements when they get married, especially if one or both parties have significant assets. Although many people presume that these agreements are set in stone, they can be challenged.

Was It Fair When It Was Signed?

The first question that must be answered is whether the antenuptial agreement was fair at the time it was signed. Here, the court will consider two types of fairness: procedural and substantive.

The first looks at HOW the parties entered into the agreement. For example: Did both parties have attorneys? Did one person improperly pressure the other to sign? Did one party spring the proposed agreement on the other at the last minute? Did the parties fully disclose all of their significant assets and income?

The second looks at WHAT was agreed to; were the terms of the agreement were fair at the time of signing. Was the agreement so disproportional that it is unfair? Did the person giving up something get anything in return? Did one party give up too much?

Is It Still Fair At The Time Of Divorce?

If the court finds that the agreement was fair at the time it was signed, it will then consider whether it is still fair at the time of divorce. It is not uncommon for circumstances to change during the marriage; the question is whether they have changed so much that it would now be unfair to enforce the agreement.

There are any number of circumstances which may make an antenuptial agreement unfair at the time of enforcement. It is not enough that one party get less than they might have without the agreement; the question is whether, under the current circumstances, enforcing the agreement would be so one-sided as to be unfair. As an example, perhaps one party agreed to forego spousal maintenance because he or she made a high income at the time of the marriage, but has since suffered a debilitating injury and can no longer work and doesn’t have sufficient assets to pay bills. The court might find that enforcing the antenuptial agreement would create a significant hardship.

What Happens When An Antenuptial Agreement is Challenged?

If one spouse wants to challenge an antenuptial agreement, the court will typically have a hearing on just that issue before considering the rest of the case. This is because whether the antenuptial agreement can be enforced usually has a big impact on the other issues being decided. Once the validity of the agreement has been determined, the parties can then try to settle or proceed to trial.

To discuss antenuptial agreements, or any family law matter, call Kruse Family Law PLLC at 612.231.9865, or email

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