Washington residents who are thinking of drafting a prenuptial agreement or already have one may wonder if prenuptial agreements can be cancelled. If you are getting married and considering a prenuptial agreement, it is natural to be wary of signing one if it can never be cancelled or revoked.
This is understandable. The good news is that a prenuptial agreement can be revoked in certain situations.
Agreeing to a revocation or amendment
The easiest way to revoke your prenuptial agreement is if you and your spouse both agree to the revocation. Washington law states that spouses can revoke a prenuptial agreement if both spouses agree.
An agreement to revoke a prenuptial agreement should be done in writing. The law requires a rescission of a prenuptial agreement be done in the same manner as the drafting, which means the writing must be voluntarily signed and notarized.
Perhaps you and your spouse only want to change some of the terms of your prenuptial agreement but not revoke it altogether. A prenuptial agreement can be amended by mutual agreement of both spouses in the same manner as a revocation, meaning any amendments must be in writing, signed and notarized.
Revocation through conduct
If your spouse does not agree to revoke your prenuptial agreement, a court may order it be revoked if there is evidence that one of both of you has not followed its terms. A court generally looks at the intent of each spouse and if evidence shows that the spouses did not follow the terms of the prenuptial agreement a court is not required to enforce it.
There are other ways to challenge a prenuptial agreement even if you and your spouse have been strictly following the terms.
Failure to adhere to any of the above requirements when drafting a prenuptial agreement could cause it to be declared void. Review the requirements and see if one was missed during the drafting and execution of the agreement. If so, you may be able to void the agreement based on a technicality.
Fraud or changed circumstances
Sometimes a spouse wants to revoke a prenuptial agreement because they learn their spouse lied about their financial situation. This is called non-disclosure and could be grounds for voiding the agreement.
A prenuptial agreement that was fair to both spouses at the time of signing might become unfair due to changed circumstances. Most people’s financial lives change over time.
For example, your prenuptial agreement may state that you permanently waive your right to alimony. However, five years into marriage your spouse takes a new job with a major pay increase and asks you to stay home to take care of your three children.
If you quit your job and become a stay-at-home parent at your spouse’s request, and you later divorce, you could request the term waiving alimony be declared void due to the changed circumstances.
There is no guarantee that a court will void a prenuptial agreement, but the goal is to achieve an equitable, or fair, outcome for both spouses. Arguing that enforcing the terms of the prenuptial agreement would put you at a distinct disadvantage increases your chance of having a court void the agreement.