How to Break a Prenuptial Agreement

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1Analyzing Your Case

2Gathering Information to Support Your Motion

3Filing a Motion

4Attending Your Hearing

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Before getting married, some couples create an agreement as to how their assets will be divided if the marriage should not last. This agreement is called a “prenuptial agreement,” commonly referred to as a “prenup.” Upon divorce, at least one person often wishes they could break that agreement. While most states will enforce a valid prenuptial agreement, there are some reasons that a prenuptial agreement could be deemed invalid.

Steps

Part 1

Part 1 of 4:

Analyzing Your Case

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   Consider hiring an attorney. If you want to challenge a prenuptial agreement in court, then you probably need an attorney. An experienced divorce lawyer will know the details of the law relating to prenuptial agreements, which vary by state. An experienced attorney can also help you build the strongest case possible for setting aside the prenup.

   • You can find an experienced family law attorney by visiting your state’s bar association, which should run a referral program.
   • Many family law attorneys offer free consultations. Call and ask if a free consultation is possible. By meeting briefly with a lawyer, you can get some sense of how strong your case is.
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   Check if the agreement was properly executed. A prenuptial agreement has to be executed in a specific way, depending on state. First, it must be in writing. Also, the prenuptial agreement should be signed. If it isn’t signed, then you can have it invalidated.

   • Also check to see if the agreement was witnessed. Your state may have laws requiring that a prenup be witnessed. In Georgia, every prenuptial agreement must be attested by two witnesses.
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   Read the prenuptial agreement. As you read it, you want to check for anything that is false or one-sided. Prenuptial agreements can be invalidated for the following reasons:

   • Incomplete information. Look to see that your spouse disclosed all of their assets in the prenuptial agreement. If they hid something, then you may have grounds to get the prenup thrown out.
   • False information. Your spouse may have outright lied about information. If the prenuptial agreement contains false information, then it may be broken.
   • Invalid provisions. Look to see if your prenuptial agreement contains any provisions that are “repugnant.” A common one is an agreement that one spouse will not have to pay child support in the event of divorce. Not only is that repugnant, it is also legally invalid. A parent cannot contract out of child support obligations.
   • Lopsided provisions. You might be able to argue that the prenuptial agreement is too one-sided and therefore “unconscionable.” This can be difficult to prove, since all prenuptial agreements involve a level of unfairness; if the parties were interested in fairness, there would be no agreement in the first place. However, giving virtually all marital property to one spouse could be unconscionable, depending on the circumstances.
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   Remember the circumstances of your signing it. You might be able to get a court to toss a prenuptial agreement if the circumstances surrounding your signing the prenup were unfair. For example, ask yourself the following:

   • Did I have my own attorney? Some states require that each party have its own attorney. Even if your state does not require separate attorneys, the failure to get an attorney for yourself could be proof that you were coerced into signing the agreement.
   • Did I have time to consider the prenuptial agreement before signing? For your consent to be valid, you need to have had time to consider the prenuptial agreement. The less time you had to consider the prenuptial agreement, the more likely it is invalid.
   • Was I pressured into signing? A prenuptial agreement will be set aside if signed under coercion. However, signing any prenup involves an amount of coercion, so the coercion has to be strong in order to set the agreement aside.
   • Did I read the prenuptial agreement before signing? This is another factor courts will consider. If you were unable to read it for a good reason, then you may have a stronger case for setting the agreement aside.
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   Perform a holistic assessment. You should realize that, apart from an improperly executed prenuptial agreement, there is no one situation that will lead a court to set it aside. Instead, the court will look at all of the factors discussed above. Although one factor by itself might not be enough, multiple factors in combination increase the strength of your case.

   • For example, if the prenuptial agreement was sprung on you an hour before the wedding, then you may not be able to break it. Although your spouse acted rudely, rudeness is typically not enough to set aside a prenuptial agreement.
   • However, if this factor was coupled with others—for example, your spouse only partially disclosed assets and you never met with a lawyer—then the combination of these factors could lead the court to break the prenuptial agreement.
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Part 2

Part 2 of 4:

Gathering Information to Support Your Motion

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   Understand discovery. In a divorce proceeding, parties may engage in a process called “discovery.” In discovery, the parties request information from each other. The purpose of discovery is to uncover information that supports your case, as well as to understand what a witness knows or doesn’t know. Discovery can be summarized into the following methods:

   • Requests for production. You can request documents relating to the divorce, marriage, property, and incomes. The scope of documents you can request is wide. In fact, so long as the document arguably relates to the divorce, then you can request it.
   • Interrogatories and Requests for Admission. You can serve written questions on the other party. With Interrogatories, you can ask broad or narrow questions to find out your spouse’s version of events. With Requests for Admission, you can ask the other party to admit or deny various facts. For example, you can ask, “Admit or Deny, You have $1 million in telecommunications stock.” If the other party fails to respond it time, the fact can be deemed admitted in court.
   • Depositions. Depositions are sworn statements, where a person answers questions under oath and in front of a court reporter. A primary purpose of a deposition is to uncover information. Depositions are often superior to Interrogatories because you can follow up on an answer and respond in real-time to what the deponent is saying.
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   Read your state’s discovery statutes. Each state’s legislature has passed different rules regarding discovery. You should try to find the state statute which explains the discovery rules for your state. Pay attention to any deadlines, as well as rules regarding how much notice you must give before requesting a deposition or documents. For example, the Wisconsin statute allows only 30 days to respond to Interrogatories and to produce documents.

   • To find your state’s statute, enter “your state” and then “discovery” into your favorite web browser.
   • Some state Supreme Courts may have adopted discovery rules in place of a statute or to supplement any statute. You can find these by performing the same internet search.
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   Think about what information you want. You will want to use discovery to get information that supports your reason why the prenuptial agreement should be set aside. For example, if you think your spouse is hiding assets, then you want to make requests that he or she turn over information about all assets. You can generally get the following information:

   • deeds and title records
   • loan documents
   • information about stock certificates and bonds
   • account statements, including savings and checking accounts, as well as brokerage and investment accounts
   • subscription and royalty agreements
   • tax documents
   • W-2 forms
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   Identify witnesses. Witnesses are another source of evidence. If someone saw your spouse intimidate you into signing the prenuptial agreement, then you would want that person to testify on your behalf. Ask yourself:

   • Who was around whenever I talked about a prenuptial agreement with my spouse?
   • Did anyone observe the signing of the document? Could they testify to my state of mind?
   • Who has information about my spouse’s finances and assets?
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   Write down your memories. You are an important source of evidence, also. You can testify at the hearing about what you observed. To preserve your memories, sit down and write down everything you remember. Pay attention to the relevant factors a court looks to: whether you were coerced, whether you had independent legal counsel, etc.

   • Also search for letters, emails, or other forms of communication between you and your spouse during the time you were considering a prenuptial agreement. Preserve anything that looks relevant, such as:
     • statements about how much assets your spouse has
     • claims that your spouse will rip up the prenuptial agreement after you have children or after the passage of several years
     • threats or promises if you sign the prenuptial agreement
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   Read the rules of evidence. You will need to begin preparation for your hearing early. You can begin by finding and reading your state’s rules of evidence. The rules of evidence will tell you what evidence the court allows and what evidence it disallows.

   • Evidentiary rules are complicated. One of the most common is the rule against hearsay. Hearsay is an out-of-court statement offered for the truth of the matter asserted. For example, a witness testifying, “He told me his wife was happy to sign the agreement” is hearsay. The statement that the wife is happy is offered for its truth, though the statement was made out of court.
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Part 3

Part 3 of 4:

Filing a Motion

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   Draft a motion to set aside the prenuptial agreement. You must file a “Motion to Set Aside the Prenuptial Agreement” in court. If you have not already answered the divorce petition, then you can raise the invalidity of the prenuptial agreement in your answer. Should you hire an attorney, then you attorney will handle drafting and filing the motion.

   • Some states will provide a blank motion form in the divorce packet you receive. If so, then you can title this motion “Motion to Set Aside the Prenuptial Agreement” and lay out the reasons why you believe the prenuptial agreement is invalid.
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   File the motion. You must file the motion in court, the same way you filed either the petition for divorce or your answer to the petition. Make copies of the motion and take the original to the court clerk.

   • Have the clerk stamp every copy of the motion that you have.
   • You may have to pay a filing fee. The fee will vary by court. If you cannot afford a fee, then ask for a fee waiver. Fee waiver forms are often included in your packet of forms.
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   Get a hearing date. The procedure for getting a hearing date will differ depending on the court. In some courts, the date will be mailed to all parties after you have filed your motion. In other courts, you will have to pick up a date when you file your motion.

   • If you have to pick up a date from the clerk, then you will probably also have to send a Notice of Hearing to the other party. The court clerk should have a form. Sometimes one is included in your packet of forms, but if not the clerk should have a blank Notice of Motion form. Fill it out and make copies.
   • You must serve the Notice of Hearing on the other party. Keep a copy for yourself as well.
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   Serve notice. You must also serve notice of your motion on the other party. Ask the court clerk for acceptable methods. You should be able to use the exact same method that you used when filing your divorce petition or when filing the answer to the divorce petition.
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   Subpoena witnesses. If you have witnesses you want to call at the hearing, then you will need to make sure that they know when the hearing is being held. You should serve them with a subpoena.

   • The subpoena must be served on witnesses. Ask the court clerk for what acceptable methods of service are. Generally, states will not allow you to serve the subpoena yourself, although some might.
   • You probably also have to serve a copy of the subpoena on your spouse, so that he or she has notice of who you are calling to come into court.
   • Be prepared to pay for the sheriff or a private process server. Process servers generally cost between $45-75 per service, and sheriffs typically cost a little less.
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Part 4

Part 4 of 4:

Attending Your Hearing

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   Dress appropriately. You want to look presentable any time you appear before a judge. Attorneys sometimes have different ideas on what you should wear. For example, some lawyers recommend clients wear business suits, if possible. Other attorneys suggest their clients not dress too nicely: an expensive-looking wardrobe suggests you don’t need any money.

   • For men, it is acceptable to wear slacks with a nice button-up shirt. You can add a sports coat and tie if you want.
   • For women, a nice blouse and a pair of slacks is appropriate. Be sure to button the blouse all the way up.
   • Also cover any tattoos that you have. Keep facial hair well-groomed.
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   Arrive early. Try to arrive to court a half hour early, and give yourself enough time to find parking if you are unfamiliar with the courthouse.

   • Before entering the courtroom, turn your cell-phone off and leave it in your pocket or purse.
   • Also leave any food or drinks outside the courtroom. If you need a morning coffee, consume it all before walking into the courthouse.
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   Give testimony. You will give testimony to the court. If you are represented by a lawyer, then the lawyer will call you to the stand and ask you questions. If you are representing yourself, then you can read out your testimony to the judge.

   • Hit the points you want to make. Again, look at the factors a court considers when determining whether a prenuptial was unfair.
   • Be careful with your language. Instead of saying, “My husband was a liar, he never told me about the stock he owned,” say “The prenuptial agreement omitted any mention of his stock, which was worth $1 million dollars.”
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   Answer questions. The other side has the right to ask you questions. You need to answer each question truthfully. However, you should always listen closely to the question. You should not agree to any statement made by an attorney if it is not accurate.

   • Listen closely for questions that contain false information. For example, an attorney may ask, “When you met with your lawyer to look over the prenuptial agreement, did you notice anything wrong with it?” If you never met with a lawyer, you should clarify that in your answer. For example, “I never met with a lawyer. Instead, the prenup was thrown in my face one day before the wedding, and I only glanced at it.”
   • Stay calm. Try not to get angry, even if you feel the lawyer is badgering you.
   • Answer the question completely but briefly. Do not volunteer information. If you are unsure of the answer, say so.
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   Question witnesses. Your attorney will also ask questions of witnesses, to draw out helpful information. If you are representing yourself, then you will need to be sure to ask questions in the proper format:

   • First, you must establish that your witnesses have personal knowledge of the events they are testifying to. You cannot have a witness testify as to what someone else told him or her. Instead, establish that the witnesses have personal knowledge by asking specific questions about where they were on a given day, what they were doing, and who they observed. In this way, you can lay a foundation for the testimony.
   • Do not ask your witnesses leading questions. A leading question is one that contains the answer in it. For example, “You were my bridesmaid when I got married, correct?” is a leading question. Instead ask, “Did you attend Mary Smith’s wedding?” Then, “In what capacity?”
   • You can ask the other spouse’s witnesses leading questions in cross examination. However, you are generally limited to asking questions only about the issues brought out on direct examination.
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   Write the order. The party that prevails at the hearing typically is tasked with writing the order form. The order will be reviewed by both parties and signed by the judge. You must include the date, what motion the order relates to (identify by title and date, e.g., “Motion to Set Aside the Prenuptial Agreement, file June 12, 2014”) and the contents of the judge’s order.

   • The court clerk should probably have a blank order form. One may also have been included in your divorce packet of forms.
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Tips

• When addressing the court, always stand and call the judge “Your Honor.”
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Warnings

• If your spouse has retained a lawyer, then you need one, too. Challenging a prenuptial agreement in court is complicated. An attorney can help you make your best case.
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