Question: My father and mother were divorced 16 years ago. Dad married #2, was divorced after eight months of bliss, and got soaked financially. He married #3 ten years ago, but before they married, my brother and I made sure Dad had her sign a premarital agreement because we are both involved in Dad’s successful restaurant and catering business and depend on it for our livelihoods. We understood from his lawyer that the agreement was “air tight” and could never be overturned, so we didn’t question it again – until now.

Dad had a stroke several months ago and will not be returning to the restaurant. He is now in a nursing home. Wife #3 -- with whom my brother and I never get along -- has sued Dad for divorce and property settlement, claiming they had terminated the premarital agreement. She claims that she is entitled to an interest in all of Dad’s property – including the restaurant and catering business.

There is no way Dad can refute these charges because he can’t understand, much less talk. We have seen two lawyers who don’t hold out much hope because Dad never incorporated the business and didn’t give us the stock as he had promised. Can she divorce him while he is sick and go back on their agreement?

Answer: “Air tight” and “never” are words that should not be used to describe the future enforceability of a premarital agreement because even the best prepared document may, under some circumstances and depending on where you live, be either modified or abandoned by mutual consent, a subsequent agreement, or even by the actions of your father and his wife that were inconsistent with the premarital agreement. That’s right: modification or abandonment of the agreement by mutual consent may be implied from the conduct of your father and his wife if these actions were incompatible with the terms of the agreement.

Even though most states may not allow oral testimony that alters or modifies a premarital agreement, and even though the Uniform Premarital Agreement Act requires that any modification be in writing, these are difficult and expensive cases because the factual patterns must be established by both sides to support their positions. The more she can prove that she relied on his inconsistent behavior, the better the possibility of success in a lawsuit claiming he and she had abandoned the agreement.

So, for example, if your father put her name on some or all of his banking accounts, pooled his assets together with hers, made her an officer in the business, or allowed her to work in the business without pay, his actions could amount to an abandonment of the agreement. Similarly, if he named #3 as his agent under a durable power of attorney and gave her the authority to run his business or participate in the profits, she may well have a good argument that the premarital agreement had been abandoned.

Bottom Line: It appears that your stepmother’s lawsuit is designed to put assets onto her side of the ledger before they are all used up paying for your father’s long-term care. This is an issue that no one seems to have brought up to you, but which we believe may be behind this action. At a cost of some $6,000 monthly depending on where you live, the cost of your Dad’s nursing home stay is certainly a heavy financial factor. We suggest you revisit these issues with your attorneys and make an effort to resolve what could otherwise be a huge mess. And depending on where you live, a divorce can be granted where one of the marital partners is disabled.