A premarital (or “prenuptial”) agreement is a contract between two people who plan to marry.
Prior to their marriage, the parties decide how they want their individual property and any joint property to be divided in the event the marriage terminates, whether by death or divorce. Spousal support may also be addressed in a premarital agreement.
The premarital agreement is often associated with couples who have different levels of wealth at the time of their marriage, or when at least one of the parties has been married previously and seeks to preserve their wealth for their children or protect their wealth from the new spouse. However, premarital agreements are becoming more and more common for the “average” couple, as more and more people are marrying later and have each already accumulated assets on their own. Awareness of the high incidence of divorce has placed premarital agreements on the radar for many couples intent upon marriage.
There are specific requirements for a premarital agreement, in order for it to be enforceable at the time of divorce . An attorney should be consulted with regard to the drafting and signing of any agreement. Like postmarital agreements, there is never any guarantee that a premarital agreement will be enforceable, but the likelihood is much higher if all the legal requirements are met.
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Couples enter into postmarital (or “postnuptial”) agreements for the same reasons they enter into premarital agreements, the main difference being that post-nuptial agreements are drafted after a couple has already been married, often for many years.
The typical client for a postmarital agreement may find themselves in a situation where a divorce is becoming a possibility, yet both parties are still hopeful that they can avoid a divorce. In this situation, spouses can sometimes reach an agreement, outlining the distribution of their property and possible spousal support should divorce occur. Knowing that their financial issues have been decided, they are able to focus on other matters in their marriage, while maintaining predictability should their reconciliation be unsuccessful.
When the time comes for the Court to decide whether to uphold a postmarital agreement, one factor that the Court will consider is whether each person was represented by counsel at the time the agreement was signed. While an attorney is not absolutely required, it is highly recommended that both parties seek independent legal counsel before signing a postmarital agreement. The Court will also look to whether the agreement was fair and equitable at the time it was signed, and whether it is fair and equitable at the time of the divorce, to determine enforcement. There is never a guarantee that a postmarital agreement will be upheld, but the likelihood is much higher if parties draft and sign an agreement in accordance with all legal requirements.
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