Sanette Tanaka, in a recent Wall Street Journal article, “Nothing Says Love Like a Prenup,” stated the most common topic in a prenuptial agreement (“prenup”) is the increase in value of separate property.  This usually pertains to the increased value of real estate.  In Delaware, this increase in value can be considered marital property, subject to division, even if it was (or still is) owned entirely by one spouse prior to the marriage.  Delaware does permits prenups though that can help outline the parties’ wishes with respect to their property.  Property is defined as “an interest, present of future, legal or equitable, vested or contingent, in real or personal property, including income and earnings.”

When the increased value of real estate is negotiated away in a prenuptial agreement, and that spouse later learns, through a divorce, how much the value has actually increased their can often be a challenge to the prenup’s validity.  This is especially true the longer the duration of the marriage.   Delaware will only invalidate a prenup if it finds that it was not executed voluntarily, there was no fair and reasonable disclosure of assets (or a waiver of disclosure) or one could not have had an adequate knowledge of the other party’s finances.  Generally speaking, it is very difficult to invalidate a prenup.  Better to look to the wise words of Confucius “ [t]he man who in the view of gain thinks of righteousness; …and who does not forget an old agreement however far back it extends – such a man may be reckoned a complete man.”

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Article provided by Andrew W. Gonser, Gonser and Gonser Attorneys 

Gonser and Gonser Attorneys
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