I Have a Prenuptial Agreement and I’m Getting Divorced. Now What?

Prenuptial Agreement

Ok, so you thought ahead and got a prenuptial agreement before you got married.  Good for you!  But now it’s looking like a divorce, so how does the prenup come into play?  The answer is that it can help clear things up, but, depending on the situation, can create other issues depending on how it’s written and how the parties interpret it.

Prenuptial agreements tend to cover a variety of issues, but the main categories they address are:

  • Disposition of assets
  • Disposition of debts
  • Payment of spousal maintenance 

Step 1: Inventory

The first step is to grab a pad of paper and list out all your existing assets and debts, just as you would with a normal divorce.  It’s a good exercise to take inventory of everything, even if you know (or think you know) that it’s covered under the prenup.  

Step 2: Identify Assets or Debt in the Prenuptial Agreement

The second step is to try and determine if the asset or debt is specifically identified in the prenup.  For example, you listed a classic car that you owned prior to marriage as an asset in the prenup.  You hung onto that car all these years; the prenup likely says that it stays yours.  Simple, right?  

Step 3: Identify Assets or Debt in the Marriage

Then you get to the not-so-simple part: assets and debts that were acquired during the marriage.  You’ll need to determine, based on the language of the prenup, whether those are considered sole and separate assets or whether they could be considered community in nature and require division.  This is where a lawyer can be a great help.

Well-drafted prenuptial agreements can be a great aid during the divorce process, as they can take a lot of the guesswork out of who gets (or doesn’t get) what can significantly shorten the divorce process and save you thousands of dollars in attorneys’ fees and costs.  

However, just like any document, if not well-crafted, they can be open for interpretation, and two people could read the same language very differently.  Add to that changing assets, finances, and family dynamics over a long period of time, it makes sense that what the parties thought was clear the day they signed the agreement might not be so clear years and years later.  Getting legal counsel to help you understand and articulate your interpretation of the prenup is critical. 

Contact Owens & Perkins, P.C. today to schedule a 30-minute Zoom or phone consultation.