What do I do if my partner is not following the terms of our prenup? This is a valid and concerning issue to have! A prenuptial agreement, or prenup, is a legal contract entered into before marriage that outlines how assets will be split up in the event of divorce or separation, but it may also include other provisions that are required to be followed during the marriage. If this is your situation, there are ways to protect yourself and ensure that the terms of the agreement are followed.
What do we mean by ‘refusing to follow a prenup’?
Refusing to follow a prenup for the context of this article may be in the context of an already pending divorce or before a divorce is filed.
For example, let’s say you have a divorce pending, and your prenup says that your spouse must pay you a lump sum of $50,000 upon divorce, and they’re now refusing to do so. Now what?
Another example may be if you haven’t filed for a divorce YET, but your partner is not abiding by your social media image clause, which states neither party may post disrespectful content about the other. Your partner is posting disrespectful or humiliating content about you online (and you’re still married), which is against the terms of the prenup. Now what? Well, now you’ll have to decide if you want to file for divorce and have the prenup enforced. (More on what you can do in the following sections).
Some terms of a prenup must be followed while the marriage is still happening, and other terms must be followed in the event of a divorce. In either scenario, if a spouse (or ex-spouse) is not following the prenup, it can be a difficult situation that may require you to file a legal action.
Reasons why someone may refuse to follow a prenup
There can be a bunch of different reasons why someone might refuse to follow a prenup.
- They are using it as a negotiation chip to get something else that they want. Maybe they really want you to pay for something, but you don’t want to, so they start refusing to follow a term in the prenup.
- They are angry and frustrated for an unrelated issue and refuse to follow the prenup in an act of revenge.
- They are ignorant of the terms of the prenup and don’t realize that they’re in the wrong. (This can easily be resolved by reviewing the prenup terms together or with an attorney).
- They believe the prenup term is unfair to them and refuse to follow it without understanding the legal implications.
What can you do if your spouse refuses to follow a prenup?
Whatever their reasoning, if your spouse is refusing to follow the terms of a prenup, then what can you do? We’ve listed some things to consider below.
- Review the terms of the prenup
The first step is to review the prenup and ensure that it says what you think it says. Maybe you remember it one way, and your partner remembers it another way. Depending on the situation, you may be able to communicate this to your spouse and say, “hey, look at this clause in our prenup; it says XYZ.” This may nip the issue in the bud without having to go any further.
Maybe this doesn’t work, and your partner doesn’t care what the prenup says. They still refuse to follow it. In that case, see the next steps below.
You may also want to speak with an attorney to have them review if the contract language is too dense to understand.
- Seek legal advice if possible
If your spouse is refusing to follow a prenup, it may be a good idea to seek legal advice from an experienced family law attorney. Your attorney can review the prenup, advise you on your legal rights, and help you understand the steps you can take to enforce the agreement.
Upon reviewing the agreement, your attorney will explain how certain terms work and if they are valid and enforceable. For example, if your prenup was executed before a certain law passed, maybe the term in question is no longer valid. Or maybe the entire prenup is likely invalid. Or, yes, your spouse is violating this prenup term, and there is something you can do about it.
If you are already mid-divorce, your lawyer may recommend negotiating with your spouse’s attorney to come to an agreement and, if that doesn’t work, filing a legal action to enforce the prenup terms. (More on this below)
- Consider mediation or counseling
If you are already mid-divorce and your spouse is refusing to follow some terms of the agreement, you might consider going to mediation regarding the issue. Mediation is when a neutral third party helps you and your spouse negotiate a settlement agreement outside of court. This can often be cheaper and less stressful than filing a legal action. It can also be a more flexible process that allows you and your spouse to come up with a resolution that works for both of you.
If you have not yet filed for divorce and your spouse is refusing to follow some terms of the agreement, you might consider marriage counseling. Marriage counseling can help you and your partner come to terms with the issue at hand. For example, if your partner is posting disparaging comments or content about you on social media (which is against your prenup terms), you may want to try counseling first before resorting to divorce.
- Consider filing for divorce
If you are still married while your partner refuses to follow some part of the prenup, you might consider filing for divorce. If counseling does not work, then this may be the only option. In your divorce case, you can have your divorce attorneys negotiate to try to come to an agreement or file a legal action to ask the court to enforce the prenup.
- Have your attorneys negotiate
If you are already knee-deep in a divorce proceeding and your spouse is refusing to follow one or multiple of the prenup terms, you might first try to have your divorce attorneys hash it out. This may mean your attorney and your spouse’s attorney speak and your attorney would try to get the other attorney to convince your spouse to follow the terms. This may mean, however, that you will have to give up something else in return.
- File an action to enforce the prenup
If you’re already in the middle of a divorce and negotiations did not work, your final option is to file an action with the court to enforce the prenup. In other words, your attorney files something with a court and asks them to legally enforce the term that your spouse is refusing to follow.
For example, let’s say your spouse is refusing to allow you to stay in the marital home, despite your prenup saying so. Your attorney will then file the action with the court, and the court will review the prenup and potentially enforce the term upon your spouse.
- Gather evidence
If you are considering legal action to enforce the prenup, your lawyer may ask that you gather evidence to show that your spouse is not following the terms of the agreement. This may include text messages, emails, bank statements, tax returns, and other financial documents that show your spouse is not complying with the prenup.
Your attorney can help you gather and organize this evidence to strengthen your case in court.
If your spouse refuses to follow a prenup, it can be a stressful and emotional experience. However, there are ways you can protect yourself and your assets and ensure that the terms of the agreement are followed. By reviewing the prenup, seeking legal advice, considering mediation/counseling, filing for divorce, negotiating, filing an action for enforcement, and gathering evidence, you can take control of the situation and protect your financial future.
Nicole Sheehey is the Head of Legal Content at HelloPrenup, and an Illinois licensed attorney. She has a wealth of knowledge and experience when it comes to prenuptial agreements. Nicole has Juris Doctor from John Marshall Law School. She has a deep understanding of the legal and financial implications of prenuptial agreements, and enjoys writing and collaborating with other attorneys on the nuances of the law. Nicole is passionate about helping couples locate the information they need when it comes to prenuptial agreements. You can reach Nicole here: [email protected]