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Missing prenup might still be valid

If someone signs a prenuptial agreement but can’t locate the original signed copy years later, it’s possible that it might still be enforced. It’s not a sure thing, but it’s possible, as a couple of recent court cases show.

In one case, a wealthy owner of strip malls and hotels in New York persuaded his fiancée to sign a prenup during a whirlwind three-week engagement by telling her that his dad would “cut him off’ if he didn’t get a prenup. On their honeymoon cruise, the couple ripped up the prenup documents and threw them in the sea. The wife’s original was gone – but the husband kept a photocopy.

A dozen years later, the couple divorced. The wife argued that the couple never meant for the prenup to be enforceable, never entered into a real negotiation, and intended to revoke the document when they ripped it up. The husband denied all this.

A judge sided with the husband, and said the prenup was valid because it had standard fine print saying it couldn’t be changed or revoked unless the couple signed a new agreement in the presence of witnesses.

Meanwhile, in New Hampshire, a divorcing husband wanted to have a prenup enforced but he didn’t have the original document. He told the court that his wife had the only signed copy and that she lost it. The wife, however, claimed she never signed a prenup at all.

The New Hampshire Supreme Court said that even if the husband couldn’t produce the original document, he might still be able to prove it existed with other evidence, such as witnesses who were there when it was signed.

The moral of the story is that it’s critical to keep important documents in a safe place – such as a safe deposit box or with your lawyer – and to hold onto copies. Even though you might be able to prove that a document exists in some other way, doing so is likely to be expensive and uncertain.

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