Prenuptial & Postnuptial Agreements
Prenuptial & Postnuptial Agreements – What You Need to Know
Pre-Marriage: A pre-marriage agreement can serve a variety of purposes. It can confirm what separate property is and will remain. That will make a divorce much less expensive. It can determine what property, after marriage, will be marital property and what property will become, or remain, separate property. A pre-marriage agreement can discuss spousal support, and who will pay for a divorce if one occurs. It cannot discuss custody, or visitation, or child support. There are strict deadlines for when a pre-marriage agreement needs to be completed. And, the closer it is to the date of marriage, the greater the risk it may not be enforceable.
Post-Marriage: This agreement is done during the marriage. This agreement allows you to change the character of property. For example, converting someone’s separate property to community. Or, converting a marital asset to separate. It is an open question on whether spousal support can be part of a post-marriage agreement. And, legal duties each spouse owes each other, after the date of marriage, allows a spouse to challenge the agreement with some ease.
Prenuptial & Postnuptial Agreements – The Next Steps
Prenuptial Agreements: Even the simplest agreement requires a great deal of approach and planning. The issue should be advance-raised with your partner, carefully. Each side will have to disclose to the other, in writing, all known assets, debts, income and expenses. We would advise each side having an attorney to sign-off on the agreement. If you own any property, including a 401k, a home, investments, a business, or even expect to receive a significant inheritance, then you should have a pre-marriage agreement. If you have been married before than you should have a pre-marriage agreement.
For those who have never married before, you should have a pre-marriage agreement. A pre-marriage agreement can change the rules regarding spousal support. It can limit the legal fees and costs you may have to reimburse your spouse if you go through a divorce. It can identify what debts a person may be responsible for. It can protect you if you are receiving income from a trust, or you own, or expect to own, a business.
The best pre-marriage agreements are the result of careful advance planning with your attorney. The agreement needs to be drafted in line what could happen if the marriage lasts only a few years, or for thirty. And, the agreement needs to be reviewed from that perspective as well.
We create pre-marriage agreements, we review agreements are clients are presented and then represent their interests, and, challenge/defend pre-marriage agreements in court actions.
Post-Marriage Agreements: These agreements need to be carefully drafted as they are very easy to challenge. If real property is involved, additional documents like transfer deeds may be needed. Witnesses may also need to be involved. We generally recommend each side have attorneys as well.