POV: You’ve already signed a prenup, got married, went on your honeymoon, and lived several happy years of marriage. Now, your partner is asking you to renegotiate the terms of the prenup–what do you do?
Well, there are a handful of options:
- Agree and renegotiate it and amend the prenup;
- Revoke the prenup altogether;
- Consult with a lawyer to see if there is a workaround or
- Disagree and see what happens. (Warning: This could lead to a divorce!)
Important note: Much of what you can do will depend on what is allowed in your state. For instance, what is the process for prenup revocation in your state? This can get very state-specific, but we’ll give you an overview of all the different scenarios.
Option 1: Amending your prenuptial agreement
Amending the prenup after renegotiating is one way to resolve your issue.
Most states will allow you to amend (i.e., change) your prenup after you’re married.
How to do it:
- Follow Same Steps: This will typically entail following the same requirements that you did for the original prenup. That means whatever steps you followed for your prenup, you need to follow them again. For instance, no unconscionable terms, signatures from both parties, notarization, and witnesses (if your state requires them).
- Both Agree on Terms: You both have to agree to these changes and sign off on them (of course).
- Additional Requirements: There may also be additional requirements that you didn’t need before for amending your prenup in certain states such as requiring attorney representation.
Option 2: Revoking your prenuptial agreement
Another option is to revoke your prenup altogether if it’s permissible in your state. This may be a good option for some couples, depending on what the goal is with the renegotiation request.
For example, let’s say Spouse A wants to renegotiate the prenup and make certain separate property become marital (i.e., making it divisible in a divorce). Spouse B can agree (if they want to) and say, “Okay, let’s just revoke the prenup and let state law take over,” which may effectively make certain property marital by default. It’s highly recommended that you speak with a lawyer in your state about this issue.
Option 3: Workarounds
Finding a workaround will typically be a job for an attorney, but there are ways you can achieve certain financial goals without even changing the prenup!
Example: Let’s say Spouse A wants to now stay at home with the kids and forgo her career. Thus, she wants to change the original prenup, which states each person’s property should remain separate, including gifts. Why does she want to change the prenup? Well, she wants to ensure she has financial support in case of a divorce now that she’s giving up her career. The workaround here MIGHT be something like Spouse B “gifts” Spouse A a lump sum of money, which would, in turn, become Spouse A’s separate property. This additional bump in cash may resolve the need to renegotiate the prenup because she now feels supported.
WARNING: Don’t try that one at home, kids! This may not be applicable for every person, depending on what your prenup specifically says and what the state law dictates. That’s where an attorney comes in. You need someone who thoroughly understands state law and the prenup language and can formulate something that will work for YOUR specific case.
Option 4: Decline to renegotiate
There is also the option to say no. You don’t have to renegotiate a prenup if you don’t want to. Now, we’re not saying this is a good idea, as this can lead to relationship turbulence if your partner is seeking out certain financial clarifications or changes in the relationship.
For this option, you may want to seek out professional help in the form of couples therapy to work out how to move forward. For instance, a therapist may be able to help you and your partner figure out the source of the need to renegotiate, why you don’t want to, and how to move forward in a harmonious way.
What about getting a postnuptial agreement?
A postnuptial agreement (i.e., a postnup) is a contract that is similar to a prenup; it’s just executed after you’re married.
Beware that there are some risks to a postnup: it isn’t as commonly upheld as prenups are across the nation. They are a relatively new legal concept, so some states and courts are hesitant to uphold them.
However, when done correctly with the assistance of an attorney, they can be an excellent tool to make sure your financial intentions are met.
Renegotiating your prenup: Tips for a smooth process
Let’s say you do decide to renegotiate your prenup; whether you end up getting a postnup or amending the original, let’s talk about the process for re-negotiations.
Tip #1: Prepare Yourself Emotionally: This won’t be easy. Take time to process your own feelings BEFORE bringing this up with your spouse. Choose a time to talk when you’re both calm. For instance, before talking with them, understand what you’re feeling (anger, sadness, frustration). Make sure to think about why you are feeling this way and try not to bring this to the table when negotiating.
Tip #2: Seek Clarity: Understand WHY you or your spouse wants to renegotiate. It is likely due to life changes, such as a new job, staying home with kids, etc. Whatever the case may be–thoroughly understand where you are coming from and make sure to listen carefully to their concerns.
Tip #3: Get Legal Advice: Don’t DIY this! An attorney can review your existing prenup, explain your options (amending vs. postnup vs. workarounds), and help you protect your interests. ALL THE WHILE making sure your marriage stays intact and things don’t get heated.
Tip #4: Focus on Solutions: Approach the renegotiations with a willingness to find a NEW agreement that’s fair to you both. Compromise may be necessary. For example, you may not get everything you want; you may have to wiggle a little in other areas to make it make sense for you both.
Tip #5: Mediation Can Help: If you’re struggling to agree, a mediator offers a neutral space to work out differences and find a mutually acceptable solution. Mediators are a great way to come to an agreement with your spouse without raising blood pressure.
Reasons why people may want to renegotiate a prenup
Wondering why your spouse may want to renegotiate the prenup? Here are some common reasons why this may come up:
Reason #1: Major Life Shifts: There may have been changes nobody could predict might make the original prenup unfair. Examples of this might be:
- Career Change: For example, maybe one spouse gives up a career to stay home with kids, builds a business, or climbs the ladder to a very high position.
- Unexpected Needs: For instance, if there is an unexpected illness or disability that occurs and one person can no longer support themselves the way they planned, the prenup may need adjusting. For example, the person who now has the unexpected illness can no longer afford to pay the other a lump sum of $100,000 or alimony upon divorce due to extensive medical bills.
Reason #2: New Assets to Protect: If one spouse starts a successful business AFTER marriage or receives a totally unexpected inheritance/gift worth a LOT of money, they might want to ensure that it’s not automatically split in a divorce. For example, if one spouse randomly receives an inheritance of $1 million from their Great Aunt Sue, which was totally unexpected, they may want to update the prenup to reflect this change.
Reason #3: Income Flips: Maybe one spouse was the breadwinner when you married, but now it’s the other way around. An outdated prenup can create unfairness in this situation. For instance, let’s say one party was making $500,000 and the other party making $50,000 at the time of the prenup. At some point during the marriage, the person making $500,000 becomes a stay-at-home parent, and the person making $50k sells a successful business for millions; they may need to amend the prenup.
The Bottom Line: A prenup should be fair, and both parties should feel protected by it. Renegotiation is about adapting the agreement to keep it relevant as circumstances evolve.
The bottom line on renegotiating your prenup
For whatever reason, if your spouse wants to renegotiate your prenup, you have some options (four options to be exact). You can agree and renegotiate with the intention of amending the prenup, you can agree to revoke the prenup altogether, you can find a workaround, or you can say no and see what happens (which may lead to relationship troubles). The choice is yours.
Frequently Asked Questions (FAQs) about renegotiating a prenup
Let’s discuss any lingering questions you may have on this topic.
Q: Can you void a prenup after marriage?
A: Yes, you can void a prenup after marriage. This is called the “revocation” of a prenup. You and your partner will need to mutually agree to do so and execute another document that effectively revokes the prenup.
Q: Can prenups be amended?
A: Yes, most states allow a prenup to be amended (i.e., changed) after marriage. However, it requires the consent of both parties and specific state requirements. Most amendments will require the same formalities and substantive requirements as the original prenup (no unconscionable terms, witnesses, notarization, etc.).
Q: Can a prenup be challenged in court?
A: Yes, a prenup can be challenged in court. That doesn’t mean the challenger will win, but you may be obligated to answer in court to a challenge to a prenup.
Q: What happens if we can’t agree on changes to our prenup?
A: If you and your spouse can’t agree on changes to your prenup, the existing agreement will remain in place (unless revoked). However, it’s possible that one or both of you may decide to pursue legal action to file for divorce and contest the prenup. In this case, it’s essential to work with an experienced attorney who can help you understand the legal system and protect your interests.
Q: How can I protect myself during prenup renegotiation?
A: To protect yourself during prenup renegotiation, be sure to approach the process with transparency and honesty and be willing to compromise where necessary to achieve your goals. You might also consider getting a lawyer to assist in the renegotiations.
Sara is a bilingual Spanish-speaking attorney and legal advisor from Orange County, CA. Sara is the co-founder of Ovando Bowen LLP, along with her husband Chumahan Bowen, Esq. As a legal advisor, Sara helps her clients navigate the complexities of both business and personal affairs. Sara has been assisting individuals and families since 2009 when she worked at the Long Beach Courthouse, Self-Help Center. Book a Q&A or Full Representation with Sara here
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