My husband and I were married 10 years ago. At the time, I was seven months pregnant with our daughter. My husband had some commercial property before our marriage that his parents helped him invest in. They insisted we have a prenuptial agreement so I could not touch his business.
Although I had a lawyer, my husband rejected every suggestion we made in the negotiation of the agreement. The only thing I am entitled to is half the increase in value of our marital home (which he owned before we married). He kept the house in his name and unbeknownst to me, last year he refinanced the mortgage and now owes more on it than it was worth at the time we were married.
So, I am entitled to zero assets if I push for the divorce. I am a teacher but my husband has made millions in his real estate business. He has always resented that I was unable to have more children after our daughter was born. I learned last week that he has a girlfriend who is expecting his child.
If I leave him, I can’t afford to stay in the same town, meaning I will upend our daughter’s life. Can I get out of the prenuptial agreement?
After the DeMatteo and Austin cases were decided, it became hard to argue that a prenuptial agreement is unenforceable. The standard for enforcement is whether the terms were fair and reasonable at the time of execution and whether they are conscionable at the time of enforcement.
The best way to get a prenuptial agreement tossed by a judge is by showing there was not full and accurate disclosure of assets prior to execution of the prenuptial agreement. It is unclear to me whether you will be able to make that claim but start here — were his real estate holdings valued by a qualified appraiser at the time? If not, you may be able to argue there was insufficient disclosure. Look at inter-family dealings with his parents — has he paid them back for their initial investment? Has he given them stakes in his holdings? Look to see what, if any, transfers he has made to them recently.
Also, you can attack the agreement because by refinancing the mortgage and limiting the equity, he essentially took all of the assets you are entitled to in a divorce. You can argue that he “stripped you of all marital interests.” Google and read the DeMatteo case. Then, find a copy of your prenuptial agreement along with any emails between the lawyers back when it was being drafted and take everything to a divorce lawyer for review.
Also please know you are better off being first in line for a child support order not second behind the girlfriend. You just might get enough to keep your daughter where she is.