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My husband and I entered into a prenuptial agreement in 2001, and were married later that same year. Now I'm thinking of filing for divorce. My concern is that the prenuptial agreement basically states that the property brought into the marriage will remain separate from the property acquired during the marriage. My husband owned quite a bit of land and mineral interests prior to the marriage. His interests are now worth much more than they were when we were first married. My question is will the prenuptial agreement apply to the original value of the property
when the agreement was entered into, or the present value?

"As always, I would need to see the prenuptial agreement. Assuming the agreement was validly executed, the wording will be extremely important to the overall property distribution if she does file for divorce."

Can you explain what it means to be validly executed?

"Well, in order for an agreement to be validly executed, a party cannot be under duress when signing the agreement. A party also has to enter into the agreement voluntarily.  Also, a party needs to have adequate time to consult with counsel if they so choose after being presented with agreement.
For example, a prenuptial agreement presented to the bride minutes before she walks down the aisle, if signed, would likely be found unenforceable because she didn't have a chance to consult with an attorney.  These are just a few examples."

You also said that the wording was extremely important. Can you explain why that is?

"Under the Uniform Premarital Agreement Act, which North Dakota has adopted, parties may contract to the disposition of property upon divorce or separation. That means the parties are allowed to agree to each of their rights and obligations in relation to any of their property whenever it was acquired and wherever it is located."

So essentially a prenuptial agreement is a contract?

"Correct. And that is why the wording is so important. Just like with other contracts, when a contract is reduced to writing, the intention of the parties is to be ascertained from the writing alone if possible."

Are there instances where other factors are considered besides the agreement?

"It's possible extrinsic, or outside, evidence can be considered by the court if the language in the agreement is ambiguous and the parties' intentions cannot be determined from the agreement itself. Also, if the premarital agreement does not reflect a spouse's intent because of fraud, mistake, or accident extrinsic evidence can be considered.  So in a case where the husband intentionally didn't disclose assets, the court would likely consider outside evidence."

In this case, she mentioned that each party keeps their separate property they brought into the marriage, does this mean that will happen?

"It depends. If the agreement does in fact state that what each party brought into the marriage will remain each party's separate property, and she also didn't substantially contribute to the increase in value, then yes it is likely the agreement will be carried out. However, I can't be sure because I don't know what the specific wording is in the agreement."

Is there anything else that may be relevant in her situation?

"There is. The court has the option to set the entire agreement aside, or certain provisions of the agreement, if they find it unconscionable. This would be a situation where the court would find the agreement, or a provision in the agreement, so grossly unfair, and that one party would face such severe hardship while the other prospered, that they would be persuaded to set it aside."

That would likely be a pretty extreme situation, however?

"Most likely. An example would be when one party retained substantial assets and had sufficient income, while the other party would be forced to go on state benefits. This would be a situation where the court would refuse to enforce either all, or part of the agreement."

But generally prenuptial agreements are enforceable?

"Generally they are. And in the situation today, I would guess it would be enforceable. And really prenuptial are an excellent way to protect assets. Especially in the case of a second marriage, or when you are otherwise coming into a marriage with substantial assets."


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