Prenuptial and Postnuptial Agreements
Couples can use antenuptial (prenuptial) and postnuptial agreements to predetermine terms for spousal support and division of property in the event the parties divorce. A well crafted prenuptial agreement can serve to educate both parties as to the assets and debts coming into a marriage, preserve substantial premarital property to each spouse and pave the way for a quick resolution should the parties divorce. Prenups also cover what would occur in the event of one spouse’s death.
There are 6 procedural requirements for a valid prenuptial agreement:
- The agreement must be in writing
- Signed by two witnesses
- There must be full and fair disclosure of income and assets and debts
- Parties must have had opportunity to consult with legal counsel of their choice
- The agreement must be signed any time prior to the marriage
Post-nuptial agreements have the same requirements for a writing and disclosure. But, for a postnuptial to be valid both parties must be represented by legal counsel and a postnuptial agreement is presumed invalid if a divorce or legal separation action is commenced within 2 years of the agreement.
The agreement must also be procedurally and substantively fair at the time of execution and enforcement. Child support or custody and parenting time may not be determined through a prenuptial or postnuptial agreement.
Drafting a solid prenup or postnup agreement takes careful consideration of the language. It is not a boilerplate document. Defending or challenging a pre or post nuptial agreement requires knowledge of the case law and presentation of a strong case.