A prenuptial agreement is a contract that spells out what you and your spouse will receive from the other in case the marriage ends in divorce. Common cases where the parties seek a prenuptial agreement are where one party has significantly more assets than the other or one party has been married previously.
However, any couple may enter into a prenuptial agreement before they get married. Issues that can be identified in a prenuptial agreement can include property division, spousal maintenance, legal decision making powers in the event a child is born, apportionment of debt, and preservation of non-marital property
For a prenuptial agreement to be legal and enforceable, both parties must accurately disclose their earnings and assets. Both parties must also have the option of being represented by their own attorney and the agreement must be signed and in writing.
Sometimes, a prenuptial agreement is deemed unenforceable because it is grossly unfair. If the court finds that the prenuptial agreement is unfair to either party during a divorce, it may be determined to be invalid. In addition, courts may also consider the prenuptial agreement invalid if the circumstances since getting married have drastically changed and they are no longer conducive to fulfilling the expectations that both parties had when the agreement was originally put into effect.
A postnuptial agreement can only be entered into by the parties during a marriage and after the parties are married. This is a contract between a married couple, which sets forth, among other things, the future division of property, assets, and the allocation of debt in the event of a divorce.
The intent behind a postnuptial agreement is to protect each party’s financial interests in the event of a divorce; to minimize disputes if and when the divorce occurs; and to have a clear idea of who would be awarded certain property in the event of a divorce.
When the postnuptial agreement is executed, both spouses must be represented by independent attorneys of their voluntary choice. The agreement will not be upheld if either party entered into it while under duress, undue influence or any other impediment.
When one spouse wants the Court to enforce the post-nuptial agreement, the Court has the discretion to disregard or supersede the terms of the postnuptial agreement because circumstances may have changed for one spouse that would make the enforcement of the post-nuptial agreement unfair.
In sum, the post-nuptial agreement is scrutinized for its validity at the time it was executed and at the time a spouse seeks to enforce it. Therefore, it is very important that you get competent representation before a postnuptial agreement is drafted and signed.
A cohabitation agreement is a contract for couples who either currently live together or plan to live together. It helps protect the parties from unnecessary cost and litigation should their cohabitation break down. A cohabitation agreement is also common if the couple will be purchasing property together, have children together, have assets in need of protection, and many other situations.
The agreement allows the parties to determine in advance who will keep specific assets and what will happen to assets that have been purchased jointly in the event the parties separate. They can clearly regulate their property rights and what arrangements might be made for mutual financial support, dealing with debt, caring for children, etc.
The challenges posed by crafting a comprehensive prenuptial, post-nuptial, or cohabitation agreement are best faced with an experienced attorney by your side. A separation involving one of these agreements is equally demanding of exceptional legal representation.
At Alithis Family Law, our lawyers pride themselves on how they serve our clients. Please reach out today for your free consultation—you can call our office at (952) 800-2025 or contact us by email at info@alithisfamilylaw.com.