It is still rare for a prenuptial agreement to be overturned. Yet these agreements are dissolved—sometimes. Think your prenup is challengeable? Here are the circumstances where you may be allowed to revisit history:
You (or your mate) didn’t live up to your part of a very specific bargain
In other words, you established a set of “musts” in the original document, and someone—maybe both of you—didn’t abide by them. For example, your wife promised to have children and didn’t, or she promised to have a certain number of children. (This was a stipulation in the prenup of a friend marrying an older, enormously wealthy man who already had six kids, but apparently had some sort of King of Siam fantasy. A certain payout would only kick in after the second. She delivered, just when she thought her eggs had given up the ghost.)
A recent inclusion? The social-media clause. Enough young couples have seen embarrassing or hostile postings on Instagram or Facebook wreck a romance, so now they are getting prohibitions or limitations on postings written into their agreements. (Surely this clause will be a source of litigation. The temptation to ignore it in a hotheaded moment is too great.)
You were tricked
What exactly constitutes fraud in the prenuptial contract? Lying about your finances for starters, says Connecticut attorney Gaetano Ferro, past president of the American Academy of Matrimonial Lawyers. In other words: Your mate said he was worth $1 million at signing, and he was worth $10 million. Whoops!
Of course, because many people are trying to negotiate their conjugal finances while maintaining the illusion of being swept along on gossamer wings, partners often waive their rights to this disclosure. In which case: Enjoy your prenup, because you’re probably stuck with it.
Yet another variation of fraud: when it is impossible for one party to understand what he/she is signing. “I had a case recently where the wife only spoke Russian and the agreement was in English,” says attorney Byron Divins. “Nobody used the expression ‘mail-order bride’ but basically that’s what she was.” It was not that difficult to nullify the prenup, Divins adds—though when it was over, Divins, who has lost only four trials in 18 years of practice, was more relieved than triumphant. “She was my client, but by the time it was all over I wanted to divorce her.”
You were strong-armed
Every week, says matrimonial attorney Raoul Felder, clients walk into his office and claim “duress” as their reason for breaking a prenup. The argument goes like this: At the last minute he was waving legal papers in my face. The wedding was planned, everyone booked their tickets and sent presents, so I would have signed a paper saying I was a space alien.
“That’s not duress,” Felder explains. “Even if it’s down to the wire and they’ve cued up ‘Here Comes the Bride,’ you have a choice about whether to get married or not.”
A prenup, in fact, halted the 2008 Palm Beach wedding of Wall Street trader Jason Bailer and Alexandra Fisher, an attorney and daughter of billionaire real estate magnate Jeff Fisher. “It was probably the most beautiful wedding I’d ever been to,” says one attendee. “The chuppah alone must have been covered with 100,000 flowers.” But there was trouble in the flower-strewn paradise. According to press reports, the prenuptial had been signed but the bride’s father made additional demands on the wedding day, including the stipulation that in case of divorce the groom would still have to pay alimony to the bride. Discussing the terms of the future divorce on the wedding day perhaps did not set the right tone. But the attendee, who was close friends with the bride’s family, says the press got it wrong. “The groom”—who had his own money, but not Fisher-level money—“was demanding that he be paid alimony for life if the marriage ended,” she says. Whatever the true story, the million-dollar wedding was called off, but the party at the Breakers continued, with the now-non-groom’s family glumly drinking in one room, and the non-bride’s family in the other. After many tears, the bride eventually emerged—shaky and dressed in black. But she danced with her family. “She is not only beautiful and smart, but she was very close to her family, and she really understood that she was being protected,” the friend says.
Fisher has since gone on to a happy marriage. “In the end, everything worked out perfectly,” the friend adds. But perhaps it’s no coincidence that during the years she practiced family law in New York City her specialty included premarital and postnuptial agreements.
In order for “duress” to have any legal standing, Raoul Felder explains, there has to be the threat of real violence—pretty much a literal, not figurative, gun to your head. This was part of Anne Dias Griffin’s argument for scotching her prenup. Days before her 2003 wedding to Ken Griffin at Versailles (guest appearances by Donna Summer and Cirque du Soleil!), Dias Griffin had not signed their agreement, and her fiancé allegedly intimidated her by destroying a piece of furniture. (Griffin’s version, according to “Page Six”: He was gripping one pole of their four-poster bed, it broke and the bed collapsed.) There was also the emotional threat. Dias Griffin claims that two days before the ceremony she was bullied into visiting a therapist to settle their dispute—a therapist Griffin had an undisclosed business relationship with. He contends that before the visit, his future bride (who was formerly head of a hedge fund herself) had several lawyers amend the prenup, making it harder to argue that it was sprung upon her.
In December, a judge struck down Dias Griffin’s claims of emotional duress, leaving her with one further prenup-dissolving argument….
You discover… This sucks
The legal word is “unconscionable,” meaning that the terms of a contract are so grossly unfair or one-sided that no court could uphold it. Apparently in the prenup she signed, Dias Griffin was entitled to only one percent of her husband’s fortune. That doesn’t sound so great, until you realize that one percent of $5 billion for an 11-year marriage is not scratch. More importantly, the Griffins had some sort of complicated arrangement whereby millions of dollars of payouts have been made already, which further muddied the waters for her claim that the prenup was forced upon her and wildly unfair. Incidentally, none of this includes any child support for their three offspring, who presumably will not lack for future aircraft of their own.
Indeed there is recent precedent for a prenup being thrown out for being both signed under duress and unconscionable. Felder calls it “extremely rare,” but in 2013 Elizabeth Petrakis, wife of Long Island millionaire Peter Petrakis, worth at least $20 million, had her prenup dissolved when a court agreed that the document she signed four days before the wedding was “fraudulently induced.” In it, she signed away the rights to all marital assets, excepting $25,000 for each year they were married. The husband gave her a verbal promise that he would rip up the document when they had children. He didn’t.
Elizabeth Petrakis has since started a company called Divorce Prep Experts.
“Here’s the thing about shredding a prenup,” says Divins. “No matter what happens, no matter who gets what, very few people walk away happy.”