to cancel the agreement and told my husband the document requires only my husband's signature and my own, and that we do not need a witness to the signatures, nor do I need my own attorney in order for the contract to be legally binding. This sounds odd to me since we both needed separate attorneys to execute the original prenuptial agreement. Is a simple statement of our mutual intention to cancel the prenup with only our two signatures attached enough to cancel the original contract in a legally-binding way?
Telecommunications Law Attorney
A prenuptial agreement is a contract and, like all contracts, its terms can be changed if agreed to by the parties and memorialized in writing. Some prenuptial agreements have sunset provisions that terminate them after so many years of marriage. Examine your prenuptial agreement to see whether there are provisions governing changes to the agreement. If it says that all changes must be in writing, then you can probably just change it the way your husband's attorney suggested. Just to be safe, and to understand exactly what you are signing, I would consult an attorney. Also, if there is a lot of money or assets involved, I recommend seeking the advice of an experienced attorney to confirm what your husband's attorney is proposing.
A prenuptial contract is a contract unlike all other contracts, at least in most states. It is entered into by two people who are “dealing at arm’s length,” before the marriage. After the marriage the two are in a confidential relationship. Any amendment is subject to being set aside by the court if one party alleges undue influence or duress. So the safe practice is to have each party have the Amendment reviewed by a different attorney, who can ask in the privacy of the attorney’s office whether there is any reason that his client does not want to do this and whether there has been any improper persuasion by the spouse. The attorney’s signature on the amendment certifies that he found no such restraint. The termination of the Agmt is subject to the same pressures and should have the same protection of consultation of counsel.
DISCLAIMERâ€”This answer is for informational purposes only under the AVVO system, its terms and conditions. It is not intended as specific legal advice regarding your question. The answer could be different if all the facts were known. This answer does not establish an attorney client relationship. I am admitted only in California. (Bryant) Keith Martin sbbizlaw.com