How Not to Revoke a Prenuptial Agreement

This case is painful to read. Margaret Ann Harrison and Jerry Harrison were married for more than 25 years. He was almost certainly unfaithful to her. She presented evidence that, following one episode of his infidelity, she and he had agreed to cancel the prenuptial agreement they had signed the morning before their wedding as a prerequisite for her continuing in the marriage. Yet at divorce, he was able to enforce the prenuptial agreement.

The case is Harrison v Harrison, DR 2150883 (Ala. Civ. App. January 20, 2017). The husband’s and wife’s testimony was contradictory, so it was left for the trial court to determine which party was telling the truth. The wife said the husband had signed a list of her requirements at home, including the voiding of the prenup, writing “I agree to this” on the list. The husband agreed that he had signed it, but only hurriedly because she had interrupted him at work and he needed to get back to his medical practice. The wife also produced a version of the prenup with a big “X” drawn across the first page and the words “Voided 5/22/10” on page one, together with her initials and what she said were the husband’s initials as well. He said he had no memory of signing the document.

After hearing testimony from the wife’s handwriting expert, the trial court found the prenup agreement to be valid and enforceable, producing a written opinion to support its decision that detailed its findings of fact. It took a couple of passes to get the case to the point where the appeals court regarded it as an appealable final order.

The appeals court quoted the trial court at length and relied heavily on the fact that this is an ore tenus case, one in which the trial court had heard direct testimony and had made a determination of the witnesses’ relative credibility. “‘When evidence is presented ore tenus in a divorce case, the judgment of the trial court premised on findings of fact that were based on that evidence is presumed correct and will not be set aside on appeal absent plain and palpable error.’ Garrett v. Garrett, 637 So.2d 1376, 1378 (Ala. Civ. App. 1994) (citing Bailey v. Bailey, 594 So.2d 166 (Ala. Civ. App. 1992)).”

So what should the husband and the wife have done if they wanted to revoke the prenup? They needed a more formal document, like the one I’ve included on this web site. Its essential elements include:

  • Formal naming of the parties
  • Identification of the prenuptial agreement together with the date on which it was originally executed
  • Recitation of consideration supporting the revocation
  • A clear and ambiguous statement that the parties intend to revoke and are hereby revoking the prenup
  • Signature and date of each party
  • Formal acknowledgement of each signature before a notary public

The trial court implied that the same requirements for the enforceability of the prenup governed its revocation. That would include an implied requirement that each party have an independent advocate at the time of the revocation. Barnhill v. Barnhill, 386 So.2d 749 (Ala. Civ. App, 1980). This seems unnecessary, inappropriate, and out of step with the majority of jurisdictions. Although the appeals court did not specifically reject the trial court’s reasoning, it did make clear that it was not making any decision that the trial court’s statement of those requirements was accurate. “We need not address whether the enforceability of a postnuptial rescission of a prenuptial agreement requires satisfaction of the Barnhill requirements, because the trial court found that the wife did not prove that the parties had mutually agreed to take any action regarding the agreement in 2010 and that finding is supported by the evidence.”

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