Prenuptial agreements are widely treated as permanent documents, but legal experts warn that failing to revisit them can have costly consequences in court.
Attorney Julia Rodgers of Hello Prenup Inc. argues that a well-drafted prenup can still lose its effectiveness if a couple’s financial behaviour consistently contradicts its terms over time.
One of the most instructive cases comes from Vermont, where the state Supreme Court invalidated a prenuptial agreement in Rock v. Rock due to decades of non-compliance by both parties.
The couple had signed their prenuptial agreement in 1994 and then spent 24 years operating as though no such agreement existed, pooling assets and ignoring financial separation requirements.
The court quoted testimony in which “both parties testified that they put the agreement in a drawer and did not think about it,” a finding that proved fatal to the agreement’s enforceability.
Because the parties repeatedly commingled assets and failed to follow virtually every major provision of the prenup, the court concluded they had effectively abandoned the agreement through their conduct.
A separate New York case, J.M. v. G.V., illustrates how dramatic life changes can undermine provisions that seemed reasonable when originally signed.
In that case, the husband claimed he put his photography career on hold to serve as the stay-at-home parent and primary caregiver for their child, which allowed the wife to continue advancing her career and earning substantially more income.
Although the court ultimately upheld most of the prenuptial agreement, it invalidated the spousal maintenance waiver, favouring the husband whose circumstances had fundamentally changed since signing.
Rodgers recommends that couples hold annual reviews to confirm that their financial practices remain consistent with the terms of their prenup agreement, catching any commingling or undocumented contributions early.
Addressing problems through an amendment is almost always less expensive than ending up in litigation years later, particularly for marriages spanning two decades or more.
Rodgers cautions, however, that amendments may be treated like postnuptial agreements and thereby receive stricter scrutiny from a court, depending on the state, so they should not be pursued casually.
The core lesson drawn from both cases is that prenuptial agreements should be treated with the same periodic attention typically given to wills and estate planning documents.
High-net-worth individuals in particular face significant exposure when their day-to-day financial conduct drifts away from the provisions they once committed to in writing.
A periodic review can help ensure a prenup continues to accomplish its intended goal and may help prevent the very litigation it was originally drafted to avoid.