Prenuptial Agreements

As the name implies, these two agreements are common agreements between the spouses before and after marriage. The prenuptial agreement will set out the details of the distribution of real estate, property, commercial property and debt after divorce. A post-marriage agreement means that both spouses continue to maintain their marital status, but there are specific allocation details for real estate, property, business, and debt.

What These Agreements Can & Cannot Cover

Pre-marital and post-marital agreements can spell out parties' property interests, including real estate, business ownership, retirement accounts, and debt responsibility. They can address spousal support (alimony). However, these agreements cannot dictate anything regarding the children of the marriage - custody, visitation, or child support must be determined based on the child's best interests at the time of divorce, not by a pre-existing agreement.

These agreements require careful drafting to ensure enforceability and fairness to both parties. A poorly drafted agreement may be unenforceable or subject to challenge.

Making Your Agreement Enforceable

Courts will only enforce a prenuptial agreement if it meets strict requirements. Both parties must have independent legal representation or knowingly waive it. Both must fully disclose their assets and liabilities. The agreement must be fair at the time it is signed. The signing cannot occur under pressure or duress. And both parties must sign voluntarily, with time to review and consult an attorney.

Lopsided agreements signed the day before the wedding, without independent counsel, may be unenforceable no matter what they say. Proper process is everything.