Prior to entering into marriage, the idea of a prenuptial agreement can be an uncomfortable topic to bring up. No one wants to think about the possibility of a failed marriage while you are in the planning stage of your wedding. As difficult of a topic as it can be, there are times when a prenuptial agreement is the best course of action. Even if neither of the future spouses have a significant amount of assets, it is wise to clarify your financial positions and responsibilities. Couples may enter into a prenuptial agreement in order to outline how property and other assets will be divided in the event of a divorce in order to avoid a legal battle down the road.
Prenuptial agreements are a very powerful document to have and it is preferable to outline your agreement prior to getting married. If the terms of the agreement are not fully understood or agreed to, then the marriage may be called off or delayed.
Just like a prenuptial agreement, a postnuptial agreement is a legal contract between spouses that outline certain details related to the marriage or how property will be divided in the event of a divorce. Since the couple is already married, the process of coming to an agreement can be very sensitive. Unlike a prenuptial agreement, if the couple cannot come to terms on an agreement, they are still legally married to each other. Also, since the couple looking to enter into an agreement is married, they now have a fiduciary responsibility to each other.
A fiduciary responsibility is when you are legally required to look out for the best interests of another person. In the area of family law and postnuptial agreements, this does not mean you have to sacrifice your rights away. It does mean that you have to be completely open and honest about your assets, holdings, and any information relevant to the proceedings. If a postnuptial agreement is challenged and it is deemed to have been too one-sided or it is found that the agreement lacked full disclosure regarding assets the agreement may be ruled void.
When would you want to enter into a Postnuptial agreement?
It is important to note that a postnuptial agreement does not imply that a marriage is on the verge of failure. It just means that there has been significant changes that need to be addressed or it could mean that details that should have been addressed were not handled prior to the wedding.
Some instances where a post nuptial agreement should be considered include:
One spouse inherits, wins, or otherwise comes into a significant amount of money or assets. With a big change, the couple is going to want to consider this and come to agreement as to how this new wealth would be distributed.
If there are children, relatives, business partners, or other pre-existing relationships. If there are children and other relationships from previous marriages or businesses, a postnuptial agreement can clarify these relationships including what can be expected when it comes to ensuring that assets will be passed along to those children or relations with no issues in the event that a spouse passes.
If one spouse gives up a job or career to take care of the family. A postnuptial agreement can also protect a spouse if there was agreement that the spouse would stop working to take care of the kids, family, and home. A postnuptial agreement would ensure that this spouse who is now earning no income is protected in the event of a divorce.
Just as there are times when it is a good idea to enter into postnuptial agreement, there are also times when it is not a good idea. If the details of the agreement are vague or not easily understood, it is a huge red flag that it is an agreement you should not sign.
While most people think a family law attorney just works in the area of divorce, it is also true that the area of family law also helps people to start their new marriage and makes sure it starts off on the right foot.
We think of a newly engaged couple as people who are young and just starting out in life. They are looking to save money, buy a home and have kids and live the American Dream. This is not always the case and while it is not romantic, there are legal issues that need to be discussed and agreed to. These agreements are extremely beneficial as it reduces the stress of the individuals knowing that they can start their new lives without worrying about the “what-ifs” of the sad possibilities of the future.
If you have any questions regarding prenuptial or postnuptial agreements call the Law Offices of Anthony J. LoPresti at 516-252-0223.