One often overlooked aspect of getting a prenup is that it is “set it and forget it.” That’s not necessarily true. While a well-drafted prenup generally withstands changes in circumstances, it may not withstand acts that violate its terms. One of the most common litigation issues for high-net-worth individuals is compliance with the terms of prenuptial agreements. For example, failing to maintain separate property, as outlined in the prenup, as separate property in “real life.” The resolution? Periodic reviews and full compliance with the terms can help couples avoid expensive litigation and ensure their prenup remains intact.

When conduct overrides your contract

In Vermont Supreme Court case Rock v. Rock (2023),[i] the prenuptial agreement was invalidated because the parties failed to comply with its terms. The parties signed the prenup in 1994 and then proceeded to spend 24 years ignoring the terms as if no prenup existed. The agreement said that they were to maintain totally separate property, allocate living expenses based on income, and keep records of their respective contributions to jointly acquired assets to ensure they are divided based on contribution in the event of a divorce. Instead, the wife spent years working (for free), 50–60 hours per week, helping grow the husband's company. They pooled assets and profits into a single investment account, deposited proceeds from jointly owned property into that account, failed to track contributions as required by the agreement, paid expenses and debts without following the agreed formula, and filed joint tax returns.

Because the parties repeatedly commingled assets and failed to follow virtually every major provision of the prenup, the court concluded they had effectively abandoned the agreement through their conduct. The court quoted testimony stating that “Both parties testified that they put the agreement in a drawer and did not think about it,” which goes to show that even a carefully drafted prenuptial agreement can lose its effectiveness if the parties' conduct consistently contradicts its terms (Id. at 497).

Practice tip: One way to avoid this situation would be to hold an annual review for clients to confirm that their financial practices remain consistent with the terms of their prenup agreement. These annual reviews can help reiterate and remind clients about the terms that they signed (it’s easy to forget), identify any current issues like commingling, undocumented contributions to separate property, or other deviations from the prenup, before they evolve into costly litigation or threaten the enforceability of the agreement itself.

Becoming a stay-at-home parent can change the risk profile

Many prenups are signed before children enter the picture. This means that signing a waiver of alimony can seem reasonable at the time of the prenup when both parties are self-supporting. Or a division of property where both parties keep their respective incomes and assets. However, when spouses later have children, and the couple decides it would be best if one person leaves their career to stay home with the kids, a waiver of support or keeping property totally separate may no longer be reasonable.

In the New York case J.M. v. G.V. (2025),[ii] the husband argued that circumstances had changed dramatically since the parties signed their prenuptial agreement in 2018. During the marriage, the husband claimed that he put his photography career on hold to serve as the stay-at-home parent and primary caregiver for their child, which allowed the wife to continue advancing her career and earning substantially more income. By the time of the divorce, the parties' financial circumstances looked very different from when the agreement was signed, leading to litigation over whether the husband's waiver of spousal maintenance should still be enforced.

Although the court ultimately upheld most of the prenuptial agreement, it invalidated the spousal maintenance waiver, favoring the husband. The case illustrates how major life changes, particularly when one spouse leaves or scales back a career to care for children, can create issues that the parties never fully contemplated at the time of signing.

Practice tip: Periodic reviews of a prenup can help identify these changes early and allow couples to amend outdated provisions before they become the subject of litigation.

Amending a prenup is usually cheaper than litigation

While the original prenup should (hopefully) withstand life changes, there may have been untraceable commingling, significant changes in income, business growth, career sacrifices to raise children, inheritances, or other developments that were never contemplated when the agreement was signed, especially for 20+ year marriages. Reviewing the agreement periodically and addressing any of these issues through an amendment is almost always less expensive than ending up in litigation years later in a divorce.

A periodic review allows couples to identify potential problem areas, clarify unclear terms, and make sure their conduct remains aligned with the terms of the agreement before litigation is even on the horizon.

Practice tip: Amendments may be treated like postnuptial agreements and thereby receive stricter scrutiny from a court (depending on the state). This means the amendment conversation should generally be raised only if the agreement is no longer serving its intended purpose, has become impossible to follow, or no longer reflects the parties' financial reality and would not be upheld in court. Amendments shouldn’t be used simply because circumstances have changed over time, with no real impact otherwise.

Conclusion: Treating prenups like estate plans

Most people understand that wills and trusts should be reviewed periodically. Prenups deserve the same treatment, especially when litigation is a likely possibility for high-net-worth clients. Commingling assets when it is against the terms of the agreement, or significant life changes that are not in line with the terms, may warrant a conversation with your client about an amendment or a restructuring of assets. While prenups are meant to provide certainty, a periodic review can help ensure it continues to accomplish that goal and may help prevent the very litigation it was drafted to avoid.

Endnotes:

1. Rock v. Rock, 308 A.3d 492 (2023).

2. J.M. v. G.V., 225 N.Y.S.3d 859 (N.Y. Sup. Ct. 2025).