Sandy P., Barrington, RI:

“When my fiancé and I were engaged, I was employed at a very good job and had previously obtained several pieces of property that were valued in excess of one million dollars. My fiancé had very few assets of his own aside from a minimal pension through his union and a few thousand dollars left from a worker’s compensation settlement. We decided prior to our marriage that we would have a prenuptial agreement. I went on the Internet, found several forms and we prepared the prenuptial agreement ourselves. We had it notarized at a bank, in the presence of my parents and then got married about two months later. Fast forward five years and we are in the middle of a vicious divorce. My soon-to-be ex-scumbag of a husband is arguing that the prenuptial agreement is invalid and that he is entitled to half of all of my property that I acquired through my hard work prior to our marriage. Will he be able to get our prenuptial agreement thrown out? And if he does, will he be entitled to get a part of the property that I had before our marriage? I hate this jerk! “

The Love Lawyer:

The good news is that you may be able to defeat him with or without a prenuptial agreement. The bad news is that a penny saved is not a penny earned. The money you thought you saved by drafting the prenuptial agreement yourself will undoubtedly cost you five times more in the divorce process just for your lawyer to assert that the prenuptial agreement is valid.

The first inquiry is whether the prenuptial agreement meets the requirements of the Uniform Premarital Act. Some examples of the requirements are: Did you have full disclosure of your assets and liabilities and was it executed voluntarily and without duress or coercion? If it meets these requirements, your lawyer may then present a Petition for a Declaratory Judgment to the court. In this case, a Petition for a Declaratory Judgment shall request that the court make a determination that the prenuptial agreement is valid. If the court determines that the agreement is valid, you are essentially in a position to get divorced in accordance with the terms of the prenuptial agreement.

If the agreement fails to meet the requirements of the Uniform Premarital Act or you are not successful with the Petition for Declaratory Judgment, all hope is not lost. Your lawyer, with your assistance, may present evidence that the property is your non-marital property because it was acquired prior to the marriage. This approach is a bit more tedious because it is your burden to demonstrate through documents that the property was acquired prior to the marriage. In the event that you made payments during the marriage for mortgages or taxes with marital monies (such as your salary), he may be able to argue for contribution back to the marital estate. In other words, he will ask for contribution to the marital estate for marital monies paid towards your non-marital property. He can then argue that he is entitled to a portion of the contribution payment back to the marital estate. However, depending on the amount of the payments, such contribution would probably be minimal because you were only married for five years.