Revocation
If both parties consent, a prenuptial agreement may be cancelled or revoked at any time. Without mutual consent, the agreement continues to exist and can be enforced when the marriage terminates.
TIP: The agreement should contain a provision requiring any change, including revocation, to be in writing and signed by both parties.
SIDEBAR: The UPAA requires a signed, written agreement if there is any amendment or revocation of a premarital agreement after marriage.
During the year we were married, my now-deceased husband told me that he wanted to terminate our prenuptial agreement. Did his statement to me terminate the agreement?
No. Your husband must have put his wish to terminate the agreement in writing in order for it to be effective. His oral statement to you doesn't change the agreement and it can be enforced against you.
Our prenuptial agreement states that all of our property is separate, including income we earn during the marriage. By depositing all our money in one account, have we revoked the agreement?
No. Although you have commingled property that is separate under the terms of the agreement, the agreement itself is still in full force. The two of you have simply made a choice to share your income with each other.
SIDEBAR: It is possible to abandon the prenuptial agreement by acting in a way that is inconsistent with its terms. However, the abandonment must be clear and decisive. For example, if the agreement provides that the husband's cattle ranch and any income from it remains his separate property but the wife consistently contributes her income to make mortgage payments on it, the husband has abandoned his right to keep the ranch separate property.
Does our separation agreement agreed upon during our divorce revoke the prenuptial agreement we signed before marriage?
Yes. When the separation agreement sets out the property each of you will receive, the support to be paid and other spousal rights that become issues when a marriage ends, it has been substituted for the prenuptial agreement.
TIP: To incorporate the terms of a prenuptial agreement into a separation agreement, the separation agreement should clearly refer to the provisions of the "prenup" the parties wish to include.
My husband, who insisted on a prenuptial agreement before we were married, tore it up. Has it been revoked?
The agreement is revoked only if both of you intended it to be revoked at the time it was torn up.
SIDEBAR: Physically destroying a prenuptial agreement is a positive act of revocation. For instance, tossing the agreement into the fire is inconsistent with wanting the agreement to continue to be in force.
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