A prenuptial agreement (commonly called a “marriage agreement” if made for married or marrying couples and a “cohabitation agreement” if made for unmarried couples) is meant to set out how the parties will approach their separation in the event that the relationship fails – including how property will be divided, who will stay in the family home and for how long, whether one person will pay spousal support to the other, and (if spousal support will be payable) how much and for how long. The agreement is intended to simplify the separation process and to protect the parties’ respective interests in the event that a separation occurs. But what happens if your feelings about the agreement change over time, and you realize it no longer actually protects your interests (or perhaps you discover that it never protected your interests in the first place)? Does that mean you’re still stuck with the agreement? Not necessarily.

Can a Prenuptial Agreement be Challenged?

There’s no shortage of reasons for why an individual might be looking at their legal options regarding a prenuptial agreement. They may not be happy with the agreement anymore, or perhaps they were never happy with it in the first place but felt they had no other option but to sign. Alternatively, they may have never fully understood the agreement or its consequences when they signed it, but, while reviewing the agreement again at the time of separation, discover that it doesn’t mean what they thought it did and realize the impact that it is going to have on them if that agreement stands. These people therefore often want to know whether it is possible for them to challenge their prenuptial agreement, and (if they can) what the procedure for that would be.

In actual fact, it is open to either party to challenge an unfair agreement and to seek the intervention of the court in doing so, and there are a number of factors which may weaken an agreement and provide grounds for bringing that challenge. One of the most important potential grounds is significant non-disclosure by one party about the assets and/or debts they had when the agreement was made – that is, if the revelation of these undisclosed assets and/or debts now makes the agreement operate unfairly.

Another potential factor may include significant inequality of bargaining power between two spouses, which the spouse with more bargaining power took advantage of to secure an agreement that was much better for them than they would have otherwise been entitled to. This may be an even bigger issue if the spouse with less bargaining power did not get the advice they needed to fully understand the agreement and what they were getting into. This may also be a bigger issue where English is the challenging spouse’s second language, and they didn’t get the opportunity to review and get advice on the agreement in a way that they could understand prior to signing. These kinds of factors may weaken a prenuptial agreement and make it vulnerable to challenge.

How Can a Prenuptial Agreement be Challenged?

Now that we know prenuptial agreements can be challenged, the question is, how can they be challenged? It depends in part on the agreement itself, because some agreements set out rules about how the parties will resolve any disputes. For example, some agreements state that, if the parties disagree about any aspect of the agreement, they must first attempt to use negotiation, mediation, or some sort of alternative dispute resolution process to resolve the issue. In that case, the parties could be obligated to first try whatever dispute resolution method process the agreement calls for, and to exhaust that option before they make any attempt to challenge the agreement in court.

If the agreement doesn’t direct the parties to use a specific form of dispute resolution, it is open to either party go to court and ask the judge to decide whether a specific term of the agreement or even the agreement as a whole is valid and enforceable. Of course, choosing to go to court comes with a certain level of risk; this is because going to court is a serious financial investment, and takes the final decision out of the hands of the parties and into the hands of a judge. Anytime a party who is unhappy with an agreement asks a judge to decide the issue, they are accepting the possibility that the judge may not see the situation or interpret the agreement in the same way that they do, and that they may therefore not get the result that they are looking for. Because of this, anyone who is considering challenging an agreement must also consider whether they have the budget to do so, and whether they are comfortable with accepting a certain level of risk.

If your prenuptial agreement is causing you grief, it’s well worth your time to explore your legal options in order to receive fair treatment. While there will not be fertile grounds for challenging an agreement in every case, grounds to challenge agreements in general most certainly do exist, and lawyers are trained to identify and assess the strength of these grounds in each particular case. Our talented lawyers have a wealth of knowledge and experience regarding all areas of law, including prenuptial agreements. We can help you discover your options, assess your level of risk, and navigate the process of challenging the agreement, if necessary. Relationships are a large investment; you deserve your fair share.