couple with a prenup

How a Prenup Can Impact the Divorce Process

By David Hammond

A prenuptial agreement, commonly referred to as a “prenup,” is a contract established prior to marriage by two prospective spouses who plan on getting married. A prenuptial agreement becomes effective upon marriage. While some people mistakenly see a prenup as planning for the failure of the marriage, a prenup can actually serve to set valuable expectations and boundaries to help see the marriage succeed. The best of marriages, however, will see trying times. Should your marriage end with a prenup in place, the divorce process will likely look different than it does for those without such a premarital contract in place.

How a Prenup Can Impact the Divorce Process

The exact impact that a prenup will have on the divorce process will largely turn on the precise terms set forth in the agreement. Overall, prenups are most likely going to help streamline the divorce process by having answers already in place to issues most couples face during divorce. For instance, a prenup can establish each spouse’s property rights, to property either owned individually or jointly. It can also set the terms for how assets and debts are distributed in the event of divorce. Property distribution can be a highly contested asset of the divorce process. A prenup already addressing this can make things move along much quicker and smoother.

Other terms of a prenup which could resolve issues faced during the divorce process may include:

  • Each party’s rights to own and manage a family business
  • Each party’s rights to alimony in amount and duration or whether no spousal maintenance will be provided at all post-divorce
  • Assignment of debt to a spouse or shielding a spouse from debt of the other spouse
  • Establish arrangements for child custody as well as child support pending a court’s finding that the arrangements are, in fact, in the best interest of the child (should the arrangement set forth in the prenup run afoul of the best interest of the child standard, the court will not enforce the child custody or child support agreement.

These are major issues involved in a divorce. A prenup can save the parties a great deal of time, money, and stress by already resolving these kinds of potential problems.

In many cases, a prenup makes the divorce process easier. In some cases, however, a prenup can complicate things. This happens when the prenup is contested. In general, a prenup is presumed valid unless a spouse can prove a reason why it should be declared invalid. Reasons for declaring a prenup invalid may include:

  • A spouse signed the prenup under duress
  • A spouse was mentally incompetent or less than 18 years of age when the prenup was signed
  • One spouse defrauded the other spouse in the agreement
  • The terms of the prenup were unconscionable, or extremely unfair, when the spouses signed it
  • The prenup was not in writing
  • The prenup was not signed by the spouses until after they were actually married

Should the prenup be contested, separate proceedings will be held to determine its validity. Should it be found invalid, all of the terms of the prenup will not be enforceable and will have to be resolved during divorce proceedings.

Divorce Attorneys

Whether you have a prenup, do not have a prenup, or have a prenup and think it is invalid, the dedicated team of divorce attorneys at CDH Law will provide you with trusted legal counsel and support throughout the divorce process. Contact us today.

About the Author
David is a former military prosecutor and defense lawyer with over a decade of experience fighting for service members and their families. He served nine years and two combat tours as an active duty US Army officer, then joined the Reserves and settled down in Syracuse to be near family. Now representing people across Central New York charged with serious felonies, misdemeanors, DWIs, and traffic offenses, he puts the same level of commitment into his civilian law practice. If you have any questions regarding this article, you can contact David here.