Prenuptial (Antenuptial) and Postnuptial Agreement
Are you getting married in the future and are considering a prenuptial agreement? Or do you already have a prenuptial agreement in place and are having issues either because your former spouse is challenging the prenuptial or because you yourself would like to challenge the prenuptial? Regardless of which scenario best fits your situation, you should hire a knowledgeable Family Law Attorney to represent your interests.
The Purpose of a Prenuptial/Postnuptial Agreement
A prenuptial agreement is a contract which may be entered into by a couple who intend to marry. It is mostly used to address issues of financial support and property division in the event the marriage ends either by divorce of death of a spouse. The purpose is to make specific allowances and compromises in case of the ending of the marriage, rather than allow the decision to fall to the courts, potentially leaving both parties unhappy as well as exposed to potentially significant additional costs. With the present divorce rate nationwide exceeding 50%, unfortunately, this is a reality that can no longer be ignored.
A prenuptial agreement can be an incredibly valuable tool, offering numerous benefits and protections, potentially to both parties. A prenuptial may be prepared jointly or by one party requesting the other party consent to the document. Typically, it is prepared by the party that has significantly more assets than the other. A prenuptial agreement may provide:
• Specific property brought into the marriage by a party will continue to belong solely to that party or will revert to being of their interest alone in the event the marriage ends (i.e. a premarital home, items of pecuniary or sentimental value, etc.).
• Certain money brought into the marriage will belong solely to one party or will revert to being of their interest alone in the event the marriage ends (i.e. a trust account, pension, non-actualized inheritance, etc.).
• Debts that should be kept separate from the marriage.
• Instructions for property settlement
• Instructions for compensation or division of assets for complex situations.
Contesting a Prenuptial Agreement
Though a prenuptial agreement is, at least in theory, created in order to avoid legal troubles in the event of the ending of a marriage, this is not always that case. For instance, if the court finds the agreement to be unconscionable or excessively favorable to one party at the expense of the other, the court may void the prenuptial agreement - either in whole or in part.
A court may find an agreement unconscionable if a spouse did not disclose assets at the time the agreement was made. This lack of transparency is unfair whether it was deliberate or unintentional. Likewise, if the assets were underestimated, misrepresented, or misunderstood in terms of value, the agreement may be found to be unconscionable. Whether this goes to the whole of the agreement or part is at the discretion of the court.
Why Do I Need a Lawyer?
By retaining an experienced family lawyer with an understanding of how the courts evaluate prenuptial agreements, you can create a prenuptial agreement that is sufficient and hopefully enables you to avoid a potential legal conflict down the line. If you do ultimately need a lawyer, whether to defend an agreement or contest it yourself, retaining an attorney will be vital in protecting your rights and property.
This content was written on behalf of Greg Prosmushkin.