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A Comprehensive Guide on When and How to Modify Your Prenuptial Agreement

By Michael DiFalco

A prenuptial agreement can be an effective tool for individuals seeking to marry to safeguard the future in the event of a divorce. Issues of property division and alimony can be addressed and settled before you and your partner marry, giving you both peace of mind and easing the process, should you ever encounter it. 

Just like any other contract, though, a prenuptial agreement works to predict and control an uncertain future. When the future anticipated by the prenuptial agreement does not come to pass, a prenuptial agreement’s terms can do more harm than good. In such a circumstance, modifying the prenuptial may be the best path for protecting yourself.

When to Consider Modifying a Prenuptial Agreement

There are several reasons why you might choose to enter into a prenuptial agreement in New York. These reasons can determine when it’s time to modify that prenuptial agreement later as well.

For instance, suppose that you have a business that you anticipate will become profitable over the course of the marriage. In this case, you might seek a prenuptial agreement that dictates how the business’s profits will be divided in the event of a divorce.

In the same way, if you are a high-earning individual and expect that your earnings will continue to increase, you and your future spouse can agree on an alimony amount your spouse would receive regardless of your earnings through a prenuptial agreement.

You also may be expecting an inheritance or other gift from a third party, which might require an examination of the prenuptial agreement to avoid any confusion or to ensure that a family’s estate plan can be properly effectuated without concerns about what happens in the event of a divorce.

You might seek to modify a prenuptial agreement if any of these assumptions change. If your business turns out to not be as profitable as you anticipated, or if your career changes, what was meant to limit your financial losses could place you in a financially precarious position.

In other words, if the circumstances you base your prenuptial agreement on change, it might be time to consider modifying it accordingly.

How to Make Changes to Prenuptial Agreements

In order to be valid in New York, a prenuptial agreement must be created before you and your partner wed and in anticipation of your upcoming marriage. Both you and your spouse must agree to the terms of the prenuptial agreement and must be afforded the opportunity to consult with your own individual attorney before signing.

Many of the same requirements needed to make a valid prenuptial agreement must be present for a modification to take place. Both you and your spouse must freely agree to the modification and must be honest with one another about the reasons for it. 

For example, you cannot falsify records or undervalue your business in an attempt to get your spouse to agree to a modification. You and your spouse must also have the chance to consult with independent attorneys about the modification.

Unlike a prenuptial agreement, however, a modification can take place either before or after you and your spouse marry. Even if you and your spouse are in the midst of divorce proceedings, you could agree to modify the terms of your prenuptial agreement before the court enters orders enforcing it.

Any Modification Must Be in Writing in New York

If you and your spouse do agree to modify your prenuptial agreement, it is essential that the modification be put in writing and signed by both of you. This serves to memorialize not only the terms of the modification, but also that the two of you agreed to these terms.

A Seasoned Garden City Family Law Attorney Is Key 

If you believe your prenuptial agreement in New York no longer protects your interests, the time to speak with a Garden City family law attorney from Aiello & DiFalco LLP is now. Our experienced team can evaluate your circumstances and recommend the best course of action to ensure your interests are protected. To discuss your prenuptial agreement, contact us to schedule your consultation today.

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.