Pre- and Post- Marital Contracts
Prior to getting married, and in contemplation of marriage, couples sometimes enter into agreements intended to control what happens legally and financially in the event of either of their deaths or divorce. These agreements are called premarital or prenuptial agreements or, occasionally, ante-nuptial agreements. Premarital agreements are effective upon marriage of the parties.
Premarital agreements generally address financial matters between the parties, including the sale, use, and transfer of property during the marriage and in the event of death or divorce; acquisition of property during the marriage; and protection of assets obtained either prior to marriage or by inheritance or bequest during the marriage. Premarital agreements may also address spousal support (alimony) rights between the parties. Premarital agreements should not address prospective child custody or child support as such provisions are typically void as against public policy.
A premarital agreement must be in writing and signed by both parties. To ensure validity, there should be full disclosure of each party’s assets and liabilities and the agreement cannot be unconscionable (extremely unfair) at the time it is signed. After marriage, a premarital agreement may be amended or revoked so long as the amendment or revocation is also in writing and signed by the parties.
Many people believe that premarital agreements are only for the wealthy. This is no longer true. Premarital agreements are for individuals who may have built a successful business prior to marriage that they wish to protect; or who have one or more children by a prior relationship, whose financial future they seek to provide for; or who have an expectation of inheritance they wish to fully preserve. A premarital agreement may make sense if there is significant disparity in the respective assets and incomes of the parties. If you are considering a premarital agreement, give us a call to determine whether one is right for you.
Postnuptial agreements are contracts between spouses, addressing property or estate rights, entered into after a couple is married. Postnuptial agreements are not necessarily just for couples contemplating divorce. Rather, postnuptial agreements are frequently adopted by couples who did not have the time or foresight to enter into a premarital agreement, couples who come into wealth during the marriage, or couples who merely wish to set in place a mechanism for property distribution in the event of death or divorce. Significantly, unlike a premarital agreement, an agreement between parties after marriage may not include provisions for alimony (or a waiver thereof) unless the parties are actually physically separated at the time they execute the postnuptial agreement.
Separation and property settlement agreements are for couples who have already separated or for whom separation is imminent. A separation and property settlement agreement may resolve some or all issues arising out of a marital separation, including property distribution, alimony, child custody, and child support. It must be in writing and signed by both parties before a notary or certifying officer. Like both pre- and post-marital agreements, separation agreements may only be set aside if they were procured through duress, coercion, or are otherwise unconscionable. Otherwise, the property distribution and spousal support terms of a separation and property settlement agreement are binding, non-modifiable, and enforceable. Although a court is not permanently bound by the parties’ agreements regarding child custody or child support, such terms may nevertheless be accorded deference in any subsequent litigation pertaining to these issues.
Separation and property settlement agreements are typically intended to remain purely contractual in nature. However, if a separation agreement is incorporated into a judgment for divorce, it is effectively converted to a court order and thereby potentially modifiable and enforceable by contempt. If the separation agreement is not incorporated, it will generally be nonmodifiable and enforceable through contractual remedies only.
If you have a question about the validity of a separation agreement, need one prepared, or just have questions about your situation, please contact us and we will be happy to discuss your options with you.
Robert Ponton began our Family Law practice group in 1980. He and Heidi Bloom are fellows in the American Academy of Matrimonial Lawyers, a national organization composed of the leading family law attorneys throughout the United States. We have unique experience in the valuation of businesses and professional practices.