Ask the Attorney: Does a Prenuptial Agreement Shorten the Divorce Process?

By Michael DiFalco
Partner

Most people never think of entering into a prenuptial agreement before getting married. They believe that these agreements are unnecessary or, even worse, encourage divorce.

But a successful marriage will survive whether the spouses have a prenuptial agreement or not. And if the marriage fails, a prenuptial agreement can protect both spouses in a divorce proceeding.

What is a prenuptial agreement?

A prenuptial agreement is a contract between a couple before they get married. A postnuptial agreement is a contract between a couple after they are already married. Both types of contracts set out the terms of any divorce if it happens. 

In other words, the couple decides how to resolve certain issues in a divorce, not because they plan to divorce, but just in case they divorce. It can be viewed as an insurance policy or protection against the worst case scenario.

A divorce or dissolution proceeding resolves four issues and then dissolves the marriage. At the end of the divorce, the spouses each become single again and are free to remarry. All the legal powers created by their marriage, like the ability to incur debts binding on the other spouse, disappear.

The four issues resolved in a divorce proceeding are as follows:

  • Child custody
  • Child support
  • Equitable distribution of property 
  • Spousal support/maintenance

A prenuptial agreement does not need to address every issue that may arise during a divorce. For example, if the couple has no children when they marry, their prenuptial agreement cannot fully address child support. Instead, the couple will often limit their prenuptial agreement to property division and spousal support.

Thus, suppose one fiance has already purchased a home before the marriage. The couple can enter into an agreement saying that party receives the house in any subsequent divorce, even though marital income might be used to maintain the house during the marriage.

Effects of a Prenuptial Agreement in Divorce Proceedings

A prenuptial agreement can affect the length of some divorces. Any time you take issues off the table, you can potentially shorten the process.

A prenuptial agreement typically clarifies issues which are often litigated in a divorce without a prenup.

A Spouse Disputes the Validity or Terms of the Prenuptial Agreement

Prenuptial agreements are contracts. You can only enter into a prenuptial agreement by mutual assent. Also, the terms of the agreement must be interpreted by a court based on the intent of the parties.

This means a prenuptial agreement in divorce cases will not always shorten the proceeding. Instead, the spouses may spend time litigating the validity or terms of the agreement.

For example, suppose that a couple married on the younger fiance’s 18th birthday. This means their prenuptial agreement was entered into while that fiance was a minor. The younger fiance can also allege that they did not understand the terms of the agreement due to their age. Both of these issues would need to be litigated to enforce the prenuptial agreement.

The Primary Issues Involve Children

Two issues, child custody and child support, usually exist outside the scope of a prenuptial agreement. Thus, even if you have a prenuptial agreement to address property division and spousal support, your case could still last the normal length of time while you resolve child issues.

The Prenuptial Agreement Is Old

Prenuptial agreements can address property division and spousal support. But circumstances can change over time. You and your spouse might acquire additional property not addressed in the agreement. Additionally, certain assumptions made in the initial agreement might not be true at the time of the divorce.

As a result, you might end up litigating these unaddressed issues in your divorce.

Using Your Prenuptial Agreement During Divorce

Prenuptial agreements can protect both spouses and create new issues that you did not anticipate. To discuss how your prenuptial agreement may affect your divorce process, contact Aiello & DiFalco, a family law firm in Garden City, NY.

About the Author
I am a partner at Aiello & DiFalco LLP, and my priority for my clients is to guide them through an arduous court case to provide them with the opportunity to write the next chapter in their life. I tailor my approach to each client’s priorities and positions, and to the extent that matters can be predicted, I will always provide a realistic perspective of how the law could be applied to the particular facts and circumstances of a case. Since I thrive on helping people and solving problems, I bring an optimistic and positive approach to practicing in a very difficult area of law. With more than a decade of experience handling hundreds of cases, I have the ability to get results on the issues my clients view as priorities. When cases or certain issues cannot be settled, I have a solid record of success at trials, hearings, and on appeals. Feel free to contact me for a free initial consultation, I am always available to help.