How to Modify a Prenuptial Agreement

Like any contract, you can modify a prenuptial agreement by creating another written contract that is signed by both parties to the original contract. However, a prenuptial agreement isn't just any contract, and postnuptial agreements often face stiffer enforcement hurdles than prenuptial agreements do in the event of a divorce – and some states don't recognize the validity of postnuptial agreements at all.^{[1]XResearch source}

Part 1

Part 1 of 3:

Analyzing Your Prenuptial Agreement

1
Go over the agreement with your spouse. Review each provision in your prenuptial agreement to decide which provisions you and your spouse want to modify.^{[2]XResearch source}
- A prenuptial or postnuptial agreement is only valid after full disclosure from both you and your spouse regarding your income, assets, debts, and liabilities.
- If any of this information has changed since you signed the prenup, share it openly. Don't assume that your spouse knows.
2
Decide whether you want to revise or terminate the prenuptial agreement. If you intend to change a significant portion of the prenuptial agreement, it may make more sense to terminate it and start from scratch.^{[3]XResearch source}
- Keep in mind that if you revoke your prenuptial agreement, property division will follow the state laws governing marital property in the event you and your spouse separate or end the marriage.
- While a contract between spouses after a marriage that revokes a prenuptial agreement generally is considered valid, a postnuptial agreement that modifies the prenup will be evaluated more closely by judges.
- If you decide to modify your prenuptial agreement, any provisions of the prenup not addressed in the written postnuptial agreement will still be in effect to the same extent.
3
Check your state law. Although all states allow you to revoke a prenuptial agreement, some do not allow you to modify the agreement after marriage, and a postnuptial agreement will have limited or no effect.
- Some states don't officially recognize the legal validity of postnuptial agreements. In these states, you can only terminate your prenup but you may not be able to create another agreement.
- For example, Ohio has a statute that explicitly prohibits postnuptial agreements.^{[4]XResearch source}
- In states that don't recognize postnuptial agreements, spouses may only make agreements that alter their legal relationship regarding property ownership in the context of a legal separation.
- Even in states that do recognize postnuptial agreements, judges evaluate these agreements more strictly because under the law spouses have a greater duty to each other after they are married than they did before.
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Part 2

Part 2 of 3:

Drafting Your Postnuptial Agreement

1
Consider hiring an attorney. Particularly if an attorney drafted the original prenuptial agreement, you probably want an attorney to draft your agreement modifying it.^{[5]XResearch source}^{[6]XResearch source}
- You can't have one attorney who advises both you and your spouse. Separate interests are at stake, so each of you must have your own attorney.
- If your spouse has hired an attorney to draft the agreement, you should hire an attorney to review the agreement for you and advise you of your interests in signing it.
- If you're concerned about the expense of hiring two attorneys, you may want to consider creating your agreement through mediation, which can be less costly.^{[7]XResearch source}
- Working with a mediator allows you and your spouse to create the provisions of the agreement yourself, ensuring that they say what you want and you understand them.
2
Search for forms or templates. You may be able to find samples online that you can use as guides to create your postnuptial agreement.^{[8]XResearch source}
- Keep in mind that any sample you find online isn't drafted by an attorney, and may not meet the legal requirements for your state.
- Even if you're thinking about drafting the agreement yourself, you may want to have an attorney look over it just to make sure it meets your state's requirements for legal validity.
3
Draft the initial recitals. In many ways the opening statements of your postnuptial agreement will mirror those found in your prenuptial agreement.^{[9]XResearch source}
- Generally, your recitals will state who you are, when and where you were married, and the purpose of the agreement.
- For example, you might write: "Whereas, Husband and Wife were married on the 7th of July, 2007, under the laws of the State of California."
- If the purpose of your postnuptial agreement is to modify your prenuptial agreement, you also should state that and make reference to the prenuptial agreement and the date it was signed.
4
Write out the agreed modifications. The next sections of your postnuptial agreement will specifically set forth the changes you want to make to your prenuptial agreement.^{[10]XResearch source}
- Organize these sections the same way they were organized in your prenuptial agreement. You also may want to refer to the sections of the prenup specifically.
- For example, you might write: "The separate property section of the prenuptial agreement is modified with respect to the house located at 123 Lovers Lane. Although Wife purchased this property prior to the marriage, Husband and Wife agree that each have joint ownership in this house, and it may not be disposed of without mutual consent."
5
Close the agreement. The final portion of your postnuptial agreement, which may be similar to those in your prenuptial agreement, contains language necessary to enforce the agreement and make it legally binding.^{[11]XResearch source}
- The closing clauses of the agreement typically contain language known as "boilerplate" because it is included in all contracts. Although it may seem like a lot of legalese, it is necessary to make the agreement legally valid.
- For example, you generally need clauses that state the agreement is the entire agreement between you and your spouse, and a clause addressing severability. What that clause means is that if a court decides that one part of your agreement is not legally enforceable, it can be removed from the agreement without invalidating any of the other portions of the agreement.
- You also need to state which state's laws govern the agreement.
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Part 3

Part 3 of 3:

Executing Your Postnuptial Agreement

1
Read over the final agreement. You should make sure you understand the postnuptial agreement and how it modifies the prenuptial agreement before you sign it.^{[12]XResearch source}^{[13]XResearch source}
- A court may declare the agreement not legally valid if you didn't have enough time to read it before you signed it. However, in most cases, you can't get out of an otherwise valid agreement by claiming you didn't read it.
- If there are any terms you don't understand or clauses that don't seem to say what you understood the agreement to be, talk to an attorney.
- Remember that you can continue to negotiate regarding the wording of an agreement before you sign it, but it will be too late to change anything after you sign it – unless you want to go through the whole process of creating a new written modification again.
2
Sign the agreement. Your agreement is not legally valid unless signed by both you and your spouse.^{[14]XResearch source}
- Some states require postnuptial agreements to be signed before a notary and other witnesses. Check your state's law before you sign your agreement to make sure you're doing it correctly, otherwise your agreement won't be recognized by the courts.
- Typically, if you use the same signing process you used for your original prenup, that will be sufficient.
- The purpose of witnesses is to confirm that both spouses are of sound mind and neither has been coerced into signing the agreement against his or her will. Make sure you choose a witness who could potentially be available to testify to these facts in a court of law.
3
Make copies for your records. You will need copies for your own records as well as copies to file or record along with the prenuptial agreement.
- Some states require pre- or post-nuptial agreements to be filed with the court or with the county clerk, particularly if they address the ownership of real property.
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Warnings

In most states, you cannot use pre- or post-nuptial agreements to limit or contract child support, spousal support, or child custody in the event of a divorce.^{[15]XResearch source}
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