Prenuptial And Postnuptial Agreements

Prenuptial and postnuptial agreements are contracts that provide each person who is going to be or was in a marriage a clear understanding of how property should be divided. To be valid, such agreements must be fair. Neither party should be taken advantage of as a result of lack of information, duress, fraud, coercion, or misrepresentation. Additionally, while it may be easier and more comfortable to make an oral agreement with a spouse or potential spouse, a prenuptial or postnuptial agreement should always be in writing to ensure that the expectations of each party are clear.

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Drafting Prenuptial/Postnuptial Agreements

A prenuptial agreement is a contract you enter into prior to marriage. The prenuptial agreement helps ensure that you and your spouse have a clear understanding of the division of finances and/or property in case of death or divorce. The prenuptial agreement also affords spouses-to-be the flexibility to determine who will pay certain bills during the marriage and to determine who will acquire property owned by each of you before the marriage.

Postnuptial agreements are entered into after a marriage has taken place. A postnuptial agreement is designed to settle financial and property issues that could arise if a spouse dies or the marriage is ended. However, it can also address current everyday issues that exist in a marriage, such as how long a person can devote to particular personal activities. Some states prevent such agreements from disposing of child support or custody issues. When drafting a postnuptial agreement, the spouses may be required to be represented by different legal counsel in order to prevent any potential conflicts of interests.

Additional designations that might be drafted into prenuptial / postnuptial agreements include:

  • How business assets will be divided
  • Who will receive future inheritances, and whether children from a prior relationship can claim their share of property
  • Who will be liable for past or current debts
  • What finances will be separate
  • What retirement/pension plan contributions will be separate

In order for prenuptial/postnuptial agreements to be valid, they must meet the following criteria:

  • Both parties must accurately disclose all assets/liabilities.
  • There can be no invalid provisions.
  • The agreement cannot be unconscionable.
  • Each party must have time to read and contemplate the agreement without pressure from the other party.
  • The agreement must be signed by both parties and notarized.
  • Each party should be represented by separate counsel (not required in some states but the best way to protect the interests of both parties and assure validity of the document).

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Cole Law Group, will help you negotiate and draft a prenuptial or postnuptial agreement with the complete understanding that each relationship is unique and, therefore, requires personal attention. Please keep in mind that while prenuptial and postnuptial agreements are generally very effective, they do not guarantee that a court will honor your agreement or that you will avoid conflict altogether if a marriage is dissolved.