The Lifespan of a Prenuptial Agreement

Prenuptial Agreement 101

A prenuptial agreement, also known as a premarital agreement or a premarriage agreement, is a written contract relating to the proposed marriage that is signed by the parties before marriage. Most people are familiar with prenuptial agreements as contracts that specify how property is divided in the event of divorce. However, prenuptial agreements may do much more; they can memorialize, the intended spousal support amount and terms; govern the management and ownership of premarital and marital assets, including businesses, finances and estates; address spousal rights during the proposed marriage; and address rights in the event of death .
Frequently, people enter into prenuptial agreements to protect anticipated assets. In addition, a prenuptial agreement may be used to protect one spouse in the event of financial mismanagement by the other spouse during the marriage. However, even if not entered into for protective purposes, many couples find value in having a written record of their expectations, requirements and preferences in the event of divorce or death.

Validity and Duration: How Long Prenuptial Agreements Last

The duration of a prenuptial agreement (or "prenup") is a key consideration because a prenup is an executory contract, the true terms of which have to be determined some day in the future. What this means in practice is, like every other business deal you might enter into, even the best-crafted prenuptial contract cannot foresee every possible eventuality and circumstance. This is of course by design, as this love and marriage thing is way more complicated and difficult than it looks on the Hallmark Channel.
As a practical matter, prenups are typically drafted with the intent that the parties will be bound by the contract until the contract is amended or terminated, or the parties’ death, whichever comes first. This might mean that the prenup will not automatically terminate upon divorce, but rather the divorce may be determined pursuant to the contract’s terms. Or the prenup may be effective for a period of 20 years, after which the contract is not binding on the parties (but does not mean the contract is automatically void or worthless). For example, the husband could agree to give the wife "X" amount of money every month for the first 20 years of the marriage, but then periodically increase the amount of money he gives her every month in lieu of spousal support for the remainder of 20 years of the marriage. A couple could also agree in their prenup that the prenup is binding on the parties – win or lose – until the death of the parties or either of them. Or the prenup could provide that the terms of the prenup shall continue indefinitely and survive beyond the death of the parties until the terms are satisfied.
For this and other reasons, there is no definitive answer to the questions of how long a prenuptial agreement lasts, or how long a prenuptial agreement should last. Now we turn our eyes to the courts.

Changing or Cancelling a Prenuptial Agreement

When spouses want a change or the ability to repeal the terms of a prenuptial agreement, there are three methods by which this can occur: (1) the parties may execute a new contract with similar force and significance as a prenuptial agreement; (2) the parties may mutually agree to revoke the agreement by a court order that declares it no longer in effect; and (3) the agreement may be revoked in circumstances that would similarly void a contract. To begin, revision or amendment of a prenuptial agreement is possible via a new contract. This does not mean that a new agreement must be labeled a prenuptial agreement, but it must: (1) establish an adequate intent to change the former agreement; (2) satisfy the requirements for the formation of a valid contract; and (3) be appropriately executed by the parties. What a couple will often seek, however, is an order from the court revoking the prenuptial agreement. A court may issue this type of ruling if it determines that the prior agreement was: (1) involuntary; (2) against comity; or (3) unconscionable when signed.

Common Provisions and Their Influence on the Validity of a Prenuptial Agreement

Commonly included clauses in prenuptial agreements include everything from fixed postnuptial alimony, to incentives for children post marriage, to terms regarding community property division upon a death. There are virtually no restrictions to what can be included in a prenuptial agreement so long as the parties have full and unrestricted opportunity to review the document with counsel of choice, and understand the contents of that document. However, there are some clauses that will most certainly ruin an otherwise valid prenuptial agreement due to their inherent temporal nature. Take the Matter of Wellenbach v. Wellenbach, 120 A.D.3d 1158 (2014). In Wellenbach, a Husband sought to have the prenuptial agreement included in his Wife’s bankruptcy estate. The Husband challenged the exemption of property contained in the document on the basis that the clause providing for the Wife to pay alimony to the Husband upon the birth of any future child from another relationship was so unreasonable and inequitable as to render the entire agreement unconscionable. The clause in question provided: "If Judith Kelley Wellenbach has a child or children with someone other than Gary Wellenbach while they are legally married, at closure time, Judith will transfer to Gary Wellenbach her separate property equal in value to the then current alimony obligation." In upholding the enforceability of the prenuptial agreement, the Supreme Court of North Carolina stated: It is well settled that "an unconscionable contract is one that no man in his sense and sober senses would make on the one hand, and as no man in his sense and sober senses would take on the other." Debnam v. S&R Corp., 154 N.C.App. 446, 451, 571 S.E.2d 641, 646 (2002) (quoting Hutton v. Waters, 153 N.C. 203, 204-05, 69 S.E. 967, 968 (1910), cert. denied, 153 N.C. 474, 69 S.E.2d 973 (1910)). The determination as to whether a contract, in this case the prenuptial agreement, is unconscionable is determined from an objective standard. Id. (citations omitted). "[I]f it appears on the face of the agreement that the contracting party is being overreached, the burden shifts to the other party to prove that the terms are fair at the time of enforcement, and that ‘there is no severe imbalance in the consideration being exchanged.’" Id. (citations omitted). "Factors tending to show unconscionability may include a disparity of bargaining power between the parties , the presence of mental or physical deficiencies, and the questionable nature of the consideration exchanged." Id. Courts may take several factors into consideration in determining whether an agreement is unconscionable, including "opportunity of parties to understand the terms of the contract, whether deceptive or oppressive terms are hidden in the contract, and whether there was meaningful choice or whether the bargaining power of one party was so oppressive as to be determinative of the consent issues." Edmisten, 315 N.C. at 569, 340 S.E.2d at 509 (citations and quotations omitted). Here, Husband does not dispute that the prenuptial agreement was negotiated, executed, and supported by both parties with counsel present. Indeed, the parties had initially entered into a series of mediation sessions; however, negotiations ceased and Wife compiled a draft agreement without Husband’s participation. We conclude that the mere existence of the alimony provision, coupled with the reasoning above, does not render the agreement unconscionable on its face. "A party challenging the unconscionability of an agreement must do more than merely identify an aspect in which the agreement could have been more favorable to him." Id. (citations and quotations omitted). Although there is no way to predict what the future holds, we must assume that, at closure time and before, Wife has certain rights and obligations regarding any children born of her marriage with Husband and those child(ren) may have rights of inheritance regarding the property of Husband. A provision referencing the hypothetical possibility that Wife may choose to waive those rights and obligations post-marriage is not so oppressive that we must conclude that it is manifestly unfair to Husband. Given this conclusion, we hold that Husband has not established that the prenuptial agreement was unconscionable. Accordingly, the trial court properly deemed the agreement enforceable. The lesson to be learned in drafting a prenuptial agreement is that all terms therein must be looked at in the context of the agreement as a whole. Every prenuptial agreement must be carefully scrutinized for clauses that might not augur well for the longevity of the entire agreement, and in particular being sure that the parties themselves fully understand exactly the import of the devices being put into place.

Circumstances that Could End a Prenuptial Agreement

Apart from the well-documented life-altering events that can occur during a marriage (for example, having a child) and the specific conditions legally agreed upon by the contract signers, there are other factors that can bring an end to a prenuptial agreement. They include:
Death – It’s readily apparent that upon the death of one of the contractual parties, the prenuptial agreement will be terminated. In other words, agreement to its terms necessarily ends when one party is no longer alive to live by them.
An express provision – Some prenuptial agreements dissolve when conditions specified in the contract itself have been met. For example, if the parties are unable to conceive a child within the first few years of their marriage, it might be stipulated in the agreement that the document becomes null and void at that time.
Divorce – Divorce and prenuptial agreements go hand in hand since the latter is put in place specifically to prepare for the eventuality of a divorce. A divorce decree will terminate the prenuptial agreement.
Agreement of the parties – This is another very straightforward termination condition. When both parties agree to dissolve a prenuptial agreement voluntarily, they provide documentation to the court stating their reasons for doing so.

Ways to Help Ensure the Longevity of Your Prenup

Alternatively, many attempts to enforce bars to modification will be challenged by the non-drafting spouse, asserting unconscionability and/or a change of circumstances since the date of execution. As a practical matter, however, and with respect to other substantive terms in the agreement, the parties can work together to minimize the risk of later court intervention.
Prudent parties should take care to craft defense against an adverse judicial modification in a few ways:

Use clear and unambiguous language.
Avoid vague language that requires future judicial interpretation. For example, "minor" or "moderate" contact with a party’s child may lead to a disagreement years later as to whether a parent was exercising sufficient time with his or her child .
Determine a threshold value for a marital asset and take care to protect the parties’ wishes relating to this asset. In particular, the proceeds of the sale of a marital home may be divided based upon the prior work/money contributions of the parties, or may be divided evenly.
Periodically revisit the agreement. A simple and clear agreement is helpful to avoid litigation in the case of divorce. Each party should be required to execute a certified copy of this agreement every two years.
Include regular recitals or acknowledgement by the parties that the duration provisions are still in effect.