Marital Contracts: Pre- and Post-Nuptials

People who want to prevent their family from fighting over money after their death take the precaution to get a Last Will & Testament. For the same reason, the stress and conflict of a possible separation can be drastically reduced with a pre- or post-nuptial agreement.

What is a pre- and postnuptial agreement?

These agreements are contracts like any other that set out the details for how assets, debts, and property will be divided, as well as setting other marriage rights like alimony or spousal support IF a divorce action is filed. The parties to this contract are engaged and anticipating marriage or are already married, and they both have a desire to pre-determine each’s rights to certain property, assets, liability for debts, etc. A pre-nuptial is an agreement made prior to marriage and a post-nuptial is an agreement made after.

For these agreements, each party will have to disclose to the other all of the assets and debts they are bringing to the marriage. Additionally, each party must be given time to review the agreement and asset/debt disclosures with their own attorney before signing.

Why should I get a prenuptial agreement?

No one gets married believing that they will get a divorce or get separated. But the reality is that more marriages in Alabama end in divorce or separation than end in death, and it is a good idea to be prepared for life’s struggles. The purpose of a prenuptial is to determine certain rights without lawsuits and litigation.

For instance, parties can agree that one party will receive a certain sum of money from the other’s retirement account, or that both parties will keep their individual retirement accounts without division. Pre-determining financial rights to your spouse’s account take out the need to consult with an attorney to predict how much may or may not receive. This arrangement can work not only with accounts, but with real property (houses, timeshares, undeveloped land), business interests, vehicles, life insurance policies, health expenses, and many other financial aspects of a divorce or separation.

Typically, who gets a prenuptial agreement?

The stereotype would have you believe that prenuptial agreements are only for rich folks who marry poor folks and do not want their previously poor spouse to run off with the fortune in a divorce. Honestly, this scenario represents a minority of people who typically get pre-nuptial agreements.

Many times, couples looking for a prenuptial agreement have already been married and divorced before, often times litigating their divorce for months or years. Going through a litigated divorce is one of the most stressful events a person could endure and those that have already suffered those highly contested divorces have no desire to repeat that experience. A prenuptial agreement eliminates the stress of another litigated divorce.

Elderly couples often seek prenuptial agreements to ensure that their own family, children, and grandchildren inherit all of their estates rather than have their new spouse receive any portion that estate. This is common especially if both spouses have significant estates that they want to leave entirely to their own side of the family.

People with unique assets (such as business interests or trust funds) or large debts (student loans, commercial loans) may also consider getting a prenuptial agreement to quickly and easily compromise on how those assets and debts are to be divided.

Can a prenuptial agreement be overturned?

Yes, but it is rare. A party seeking to uphold the agreement must show either that (1) the agreement was made with adequate consideration (lawyer term for “compromise” or a mutually bargained exchange of rights and promises), and that it was fair from the other party’s point-of-view OR (2) that both parties freely and voluntarily entered into the agreement after being provided time to review the other party’s list of assets and debts in their estate and consult about the agreement with independent legal counsel.

So, if the prenuptial agreement leaves one party with no property and no rights in the event of a divorce and that person was not provided an opportunity to go over the agreement with their own attorney before signing, the agreement may not be valid. Similarly, if one party leaves off a piece of land or a major commercial loan from their “estate disclosure”, then the agreement may not be valid.

Do I need a prenuptial agreement?

Each case is different, so it is tough to know whether a person could benefit from a pre- or post-nuptial agreement. Feel free to call us at Martinson & Beason, P.C. for a brief, free consult with our family law attorneys about the pros and cons of these agreements.