Have you ever had the desire to go back in time and undo something you’ve done or do it in a completely different way? Of course you have! We’ve all wished we could have a do-over. There’s even a name for it in golf! It’s called a mulligan—the ability to re-hit a ball without penalty after making a poor shot. Why don’t we have mulligans in real life?! Well, there is some good news. Some important situations allow you to go back and revise or even cancel decisions you made in the past!
Let’s discuss one of those important situations right now—prenuptial agreements. If days or even years have passed since signing your prenup and you want to amend or revoke your agreement… You are allowed to do that! There are, of course, certain formalities you must abide by in order for an amendment or revocation to be enforceable. But how exactly do I revoke my prenup? And what requirements must I meet to officially revoke my prenup? Keep reading to learn how to make a change of heart official.
What does it mean to “revoke” my prenup?
Revoking a prenup essentially means to cancel a prenuptial agreement and to continue in life as though you and your partner never entered into the contract to begin with. The consequence of revoking your prenup is that if there’s a divorce in the future, the court will distribute assets according to the state laws of property division.
Most states divide property under the principle of “equitable distribution,” meaning that a court divides marital property in a way they deem fair and equitable. This does not necessarily mean equally (50/50). Nine states, however, divide property according to the laws of “community property.” The courts in these states divide marital property equally, which usually, but not always, means an equal division (50/50).
If you cancelled your prenup, the court in your jurisdiction would behave as though the prenup never existed and would use either equitable division or community property to distribute marital property.
It’s important to note, however, that a prenup cannot be revoked once a party has filed for divorce. Prenups are typically considered to be activated upon a divorce filing. If you and your partner disagree with the terms of your original prenup, but the divorce process has already begun, you can attempt to challenge the prenup in court. We’ll discuss this option below!
How do I revoke my prenup?
If you and your partner are in agreement about revoking your prenup, it’s actually not that hard to do! One-way revocations are not allowed, so make sure you and your companion are on the same page regarding the cancellation. But before jumping in, research your state’s requirements for revoking a prenup. Most state requirements are similar to their prenup rules, and many states have adopted the Uniform Premarital Agreement Act (UPAA). Under the UPAA and most state statutes, a revocation of a prenup must be in writing and voluntarily signed by both parties. But a few states have additional requirements, including hiring separate attorneys, signing in front of a notary public, or signing in front of any third-party witness.
Regardless of the rules in your state, it’s always a good idea to follow the same precautions in your revocation as you followed for your prenup. For example, if you both hired separate attorneys and signed the contract in the presence of a notary, it’s advisable that you follow the same steps when drafting and signing your revocation. This will objectively give your revocation document the same formalities as your prenup, and a party would have a difficult time claiming that the prenup carries more weight just because it was more formally executed.
Do I need to hire an attorney to revoke my prenup?
Not necessarily, but it’s definitely recommended as revoking can have stringent legal requirements. Most states do not require parties to hire attorneys for a valid and enforceable prenup. However, some states, like California, require that each party have an independent attorney involved if the prenup amends or waives alimony (i.e., “spousal maintenance” or “spousal support”). As mentioned above, follow the same formalities that you did in drafting your prenup. If you each hired separate attorneys to draft the original document, even if it wasn’t required by state law, it’s a good idea to do that again for your revocation document.
Even if you didn’t hire individual attorneys to draft the prenuptial agreement, it’s recommended to hire attorneys in the revocation process. Each party having an independent attorney explain the consequences of canceling a prenup would help the court see that both parties fully understood the meaning of the revocation and approved of it before signing. Additionally, having a notary present during signing is not required in most states, but it would add extra validity to the signatures as a notary is a third-party witness to the signing. The presence of a notary and the presence of attorneys through the revocation process could prevent claims of duress or coercion in the future. And, speaking of a third-party witness, a few states require that you have a witness present when signing a prenup, so if you live in one of those states, you should have a witness present when you sign the prenup revocation.
Check your local state laws or consult a family law attorney familiar with prenuptial agreements to find out for sure.
What if my partner won’t agree to a revocation?
As mentioned above, you can only revoke your prenup if both you and your partner agree to cancel the prenup and voluntarily sign the revocation. If your partner is opposed to revoking the agreement, they might be open to changing the language. Revising or changing the language in a prenup, or any contract for that matter, is called making an “amendment.” If you and your partner agree to amend your original prenup, first make sure that your state allows amendments. If it does, then check your state’s requirements. As we’ve discussed, some states might require attorney, or a notary or witness at signing.
Once you have a grasp of your state’s laws regarding amendments to prenups, you and your partner need to decide which provisions of the prenup you’re going to change. Similar to a revocation, an amendment is a new document that very clearly states which clauses and sections in the prenup you both want to change and the language that will replace it. There should be no ambiguity in the amendment. Consulting a family law attorney experienced in prenuptial amendments is highly recommended. Amendments can be a wonderful and fairly simple option for couples who want to keep their original prenup intact but update it to more accurately reflect their current situation.
What if my partner won’t revoke or amend our prenup?
If your partner does not want to revoke or amend your prenup, but you’re still uncomfortable with its terms, you could attempt to challenge the prenup in court. This involves filing a complaint with the court claiming that the prenup is invalid or unenforceable.
It’s important to know that challenging a prenuptial agreement can be…well, challenging! Most states tend to uphold prenups if they followed the states’ requirements and the terms aren’t unconscionable. A judge will look at the circumstances surrounding the signing of the agreement and possibly the circumstances of your marriage before deciding whether to agree with you and throw out the prenup.
Grounds to challenge a prenup
States differ on what grounds a party can challenge a prenup, but courts primarily focus on whether a prenup was entered into voluntarily and with full knowledge of their partner’s finances. Check with your state for what grounds a party is allowed to challenge a prenup, but here’s a common list of grounds:
- Improper execution: If the prenup was not in writing or was not voluntarily signed by both parties, then it might be invalid. Additionally, some states require that a lawyer was hired or that there be a notary public or a third-party witness present at signing. Not abiding by state-specific laws can invalidate a prenup.
- Coercion or Duress: A party must prove that they did not sign the agreement voluntarily because they were threatened, pressured, or forced into signing. Check with your state on the standards regarding what level of proof is required.
- Lack of full financial disclosure: If a party was unaware of the financial assets, income, or debt of the other party, this could invalidate a prenup. States vary in the level of disclosure required and whether previous knowledge of the other party’s financials might suffice.
- Unconscionability: If a prenup’s terms are severely unfair or so one-sided that it shocks the conscience, a court might invalidate a prenup. Also, some states look at the fairness at the time of enforcement, and whether enforcing the agreement might cause a party to be financially devastated or in need of public assistance.
- Changes in Circumstances: A few states consider how the lives of the parties have changed since they signed the agreement. If the circumstances have changed so drastically that it would be a hardship for one of the parties to maintain their current lifestyle, they might strike certain clauses of the prenup, especially those amending or waiving alimony.
- Lack of Capacity: If a party can prove that they lacked the mental capacity to fully understand the agreement when they signed, a court might consider the facts of the situation and agree to throw out the prenup.
- Lack of Opportunity to Consult an Attorney: Though most states don’t require hiring an attorney to draft a prenup, many courts consider whether the parties had enough time to review the prenup and consult an attorney. If there was not enough time between the presentation of a prenup and the signing, a court might not view the signatures as voluntary and might throw out the agreement.
- Illegal Clauses: If there are clauses that encourage illegal behavior or even clauses that address issues which are meant to be off limits in a prenup (i.e., limiting child support or child custody), a court might strike those clauses or might invalidate the prenup altogether.
How to revoke your prenup in a nutshell
We all know that hindsight is 20/20. If you and your partner have a change of heart or even change of circumstances that make you want to revise or cancel your prenuptial agreement… You have options! The most important point is that in order to revoke or amend your prenup, you and your partner must be in agreement. States differ on their requirements for a valid and enforceable revocation of a prenup, but revocations must, at their bare minimum, be in writing and signed voluntarily by both parties. Your revocation or amendment is a separate document that must reference the original prenup and must state in clear language the intentions of you and your partner.
Prenuptial agreements and any documents that cancel or amend your prenup can have a significant effect on your financial future! Therefore, it’s highly recommended that you consult a family law attorney experienced in prenuptial agreements to fully explain the consequences of these documents, and to ensure that they meet your state’s specific requirements for validity.
Jourdan Stewart is Legal Operations Attorney at HelloPrenup, and a Texas licensed attorney. Jourdan is experienced in drafting prenuptial agreements, and her legal expertise extends to other aspects of family law, business law and entertainment law. Jourdan earned her law degree from Pepperdine University, her MBA from The Acton School of Business, and her BBA from Baylor University. Jourdan’s favorite aspect of legal practice is helping clients fully understand and achieve their goals. She finds great satisfaction in tailoring solutions to each client’s unique set of wants and needs. When she’s not practicing law, Jourdan can be found in nature with her two children and their dog, Stewey.
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