In the past, many couples saw pre-nuptial and post-nuptial agreements as a lack of commitment to the relationship and a violation of the sanctity of the marriage contract. But in today’s reality, with divorce rates in first marriages hitting 50% and being much higher in subsequent marriages, pre and post-nuptial agreements are more common, more easily accepted, and entirely practical. The placement of these agreements can bring peace of mind to a couple while not undermining their commitment to each other and the marriage.
What is a Pre-Nuptial Agreement?
A “Pre-Nup” is a contract dividing assets entered into prior to a marriage. This contract spells out what will happen to future income, retirement accounts, businesses, trusts, if alimony will be paid and how much and for how long, and division of property/assets held prior to the marriage. A Pre-Nup will require full financial disclosure by both parties including bank statements, tax returns, and deeds. Once the disclosures are made and the assets division is agreed upon, the contract will be drawn up by your attorney, both parties must sign it, and it will be notarized. Should you and your spouse divorce, the Pre-Nup agreement will be submitted as the agreement to govern division of all property and assets held by each person prior to the marriage. Any property and assets obtained during the marriage will most likely be considered joint marital property and their division will need to be decided upon unless specifically addressed in the Pre-Nup agreement. Pre-Nups are hard to break but can be set aside under certain conditions, such as one party did not disclose or “hid” assets from the other, thus violating the full disclosure agreement, or if one party can prove they signed the contract under duress.
What is a Post-Nuptial Agreement?
A “Post-Nup” is a contract dividing marital assets entered into after marriage. It considers the same property as a Pre-Nup, but since it is applied after the marriage has taken place, it addresses the division of marital assets. It can be used to decide how things are divided such as: earning, assets (such as vehicles, jewelry, art), appreciation of assets and property, real estate, responsibility of tax filings, and division of debt. A Post-Nup can also be used to establish payment of alimony, how much and for how long. A Post-Nup also requires full financial disclosure, although some spouses will cede that they have a reasonable understanding of the marital estate and forego a full forensic financial disclosure. Just like Pre-Nups, Post-Nups are hard break but can be set aside if assets are hidden or undue duress is exercised to execute the contract.
What About the Children?
Neither a Pre-Nuptial nor A Post-Nuptial can be used to decide child custody or child support. The Court retains its authority to decide what is best for minor children at the time of the divorce.
Hire an Experienced Pre and Post Nuptial Attorney
We can help you with your Pre and Post Nuptial Agreements, from assisting with the full financial disclosure to document preparation and execution. If you signed a pre- or post-nuptial contract and now believe your spouse hid assets or property from you or put you in a position of undue duress to sign the contract, our attorneys will explore your options as well. Call us at (615) 444-3995.