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Pre and Post Nuptial Agreements

If you and your partner are contemplating marriage, you might want to enter into a pre-nuptial agreement (also known as a pre-marital agreement). A pre-nuptial is an agreement between prospective spouses, made in contemplation of marriage, to be effective upon marriage. A pre-nuptial allows the parties to agree on a host of issues, such as property disposition or support, in the event of the death of one of the parties or divorce.

A pre-nuptial agreement is in writing, with a statement of assets attached and signed by both parties. If one or both of the parties has children, a pre-nuptial agreement cannot adversely affect a child’s right to receive support.

After marriage, a pre-nuptial agreement may be amended or revoked by the parties’ written agreement.

If one of the parties later argues the pre-nuptial agreement is unenforceable, the burden of proof to set aside the deal is on that party. To meet this burden, the party seeking to set aside the agreement shall prove at least one of the following by clear and convincing evidence:

  1. The party executed the agreement involuntarily.
  2. The agreement was unconscionable when it was executed because of that party, before the execution of the contract:
    1. Was not provided full and fair disclosure of the earnings, property, and financial obligations of the other party.
    2. Did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided.
    3. Did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the other party.
    4. Did not consult with independent legal counsel and did not voluntarily and expressly waive, in writing, the opportunity to consult with independent legal counsel.
  3. An agreement shall not be deemed unconscionable unless the circumstances set out above are applicable.

Additionally, married couples are free to enter into agreements during the marriage. For example, spouses who have separated may enter a written “reconciliation agreement,” dictating certain marital activities and decisions should the spouses get back together.

Courts generally approve of post-nuptial agreements such as “reconciliation agreements” so long as they comply with the required formalities. In these cases, the marital relationship has already broken down to the brink of indefinite separation. Therefore, there is a greater incentive for the parties to negotiate for individual interests. As a result, the possibility of coercion is less likely to be present.

However, courts will evaluate post-nuptial agreements with a high degree of scrutiny. Often, there is an understandable desire of at least one spouse to preserve the marriage. For example, suppose a spouse is presented with an ultimatum to either sign a post-nuptial agreement or face the divorce. In that case, that spouse will likely feel compelled to sign the deal, especially if the couple has young children and desires to keep the marital home intact for the children’s benefit.

In such instances, a court will be suspicious that one party is trying to take advantage of the other’s dedication to the marriage and family. The court will be on guard for the possibility that one party uses the threat of dissolution to bargain themselves into a position of advantage. If this is found to be the case, a court will likely deem the post-nuptial agreement invalid.

If you and your spouse are contemplating any type of formal agreement, we can evaluate your circumstances and provide you with valuable guidance on how to proceed.

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