Divorce proceedings can take years to finalize if the parties have a significant number of assets and/or they simply cannot agree on who is entitled to what property or asset. These disputes are especially common where the parties own real estate, retirement accounts, or have interests in one or more businesses. At their worst, a contested divorce case can require multiple court appearances and costly attorneys’ fees. Fortunately, property rights disputes can be avoided completely before or during a marriage.
A prenuptial agreement is a contract signed by both parties prior to the marriage ceremony. The parties first disclose a full accounting of their wealth, property and estate, as well as any debts or other liabilities in their names. The agreement can also contain statements of any anticipated inheritance the parties may receive or the potential for increases in either party’s income.
A prenuptial agreement can include protection for property accumulated before and during the marriage, including real estate and business interests as well as personal property. It can also protect the parties from any premarital debt, such as student loans, in the event of death or any separation of the parties. Most importantly, a prenuptial agreement can allow the parties to waive any potential right to alimony, which is now called maintenance, in the event of a divorce, separation, or invalidity of the marriage.
There are a few issues a prenuptial agreement cannot address, including: child custody, visitation, or child support payments. There are few instances where a prenuptial agreement will not be enforced, including: (1) an unsigned prenuptial agreement ; (2) if a party was coerced, forced, threatened and signed against their own free will; (3) a prenuptial agreement based on false information; (4) the failure of one or both parties to fully disclose their assets, property, wealth , income and/or debt to the other prior to the execution of the prenuptial agreement; and (5) a prenuptial agreement that is highly prejudicial to one or both parties.
Ideally, each party should have their own lawyer review the document prior to signing; however, a party can waive their right to have a lawyer read over the document if he or she understands the risks and consequences of not exercising the right to an attorney
A postnuptial agreement is a contract signed by the parties at any point during the marriage that details the parties’ rights in the event of dissolution or separation.
Like a prenuptial agreement, a postnuptial agreement is entered into only after an accounting of the assets and liabilities of each of the parties. A postnuptial agreement can protect the business interests and real estate rights of each of the parties in the event that the marriage breaks down. It can include property acquired before or even during the marriage. It can also protect the parties from each other’s debts, such as student loans or credit card expenses. It can even detail who will pay certain bills acquired during the marriage. Likewise, a postnuptial agreement can be used to waive the parties’ rights to maintenance payments during dissolution proceedings and after the marriage ends.
Unlike a prenuptial agreement, a postnuptial agreement can protect the parties’ rights with regards to the children, such as child support and division of responsibilities (such as who will pick the children up from school or pay for summer camps).
A postnuptial agreement should also be signed by both parties of their own free will and should be substantially fair to both parties. Each party should be represented by independent counsel, but again, either party can waive their right to counsel if they clearly understand the risks and consequences of the waiver.
In the media, prenuptial and postnuptial agreements are generally entered into by rich parties anticipating an eventual divorce and trying to protect their assets from a greedy future spouse viewed as a “gold digger”. The reality of these agreements need not reflect such a flippant and critical view towards marriage. These agreements can remove some, if not all, of the stress from a wedding and a shared life by predetermining that neither party is entering the marriage solely to gain some financial benefit from the other spouse, but rather to share in all that marriage can bring to both parties.
Prenuptial and postnuptial agreements can promote marital harmony by ensuring that the parties are willing to work together and dedicate themselves to the success of the marriage, as neither stands to gain from a separation or divorce. Further, an agreement of this sort can ease the strain on spouses who may worry that their partner will take on their debts in the event of an untimely death. A postnuptial agreement can even be used to ensure that both parties are dedicated to the health and well-being of the parties’ children at a time when the parties are still willing to work together, rather than leaving questions of custody and child support to be determined when the parties are in the midst of a dissolution.
If you and your partner are considering marriage or are already married and want to protect your interests, contact Kiswani Law at (708) 210-9247 today to discuss your prenuptial or postnuptial agreement.