Pre-Nuptial Agreements and Post-Nuptial Agreements

Pre-Nuptial Agreements are written contracts entered into between prospective spouses in
contemplation of marriage. Post-Nuptial Agreements are therefore contracts entered into
after the marriage. Both are entered into primarily to protect specific property from the
consequences of death or dissolution of marriage. Where previously they were limited to
the rich and famous, they are now a more commonly used instrument to protect everyday
people’s assets at all income levels. High divorce rates, estate battles, and second
marriages
(where a party has previously gone through a lengthy and difficult divorce)
are now common reasons people seek to limit their exposure should the unthinkable
occur.

In agreements contemplating the party’s divorce, the contract must be entered into
freely, fairly, knowingly, understandingly, and in good faith with full disclosure. The
agreement must also be deemed conscionable by the court reviewing the agreement.

In agreements contemplating specific terms upon the death of one party, there must
be a valid waiver of inheritance rights in the case of intestacy or the right to elect to take
against a will. There must be full disclosure of the nature and extent of the right being
waived, which requires disclosure of the nature and extent of the property interests of the
parties. There must be fair consideration under all the circumstances that moves the
prospective spouse to surrender his/her marital rights.

In determining the validity of such an agreement, the Courts will look at many factors
including but not limited to:

1. Were both parties represented by counsel when entering the agreement;
2. Was there sufficient time for both parties to consider all issues prior to entering
the agreement.
3. How close to the date of marriage was the agreement entered;
4. Was there any coercion or duress
5. Fairness of the underlying agreement.
6. Did both parties fully understand their rights when entering the agreement
7. Did the parties provide accurate and full disclosure of all their existing incomes,
assets, liabilities, and financial expectancies.

If neither party (or their heirs) contest the validity of the agreement, Prenuptial and
Postnuptial agreements are an excellent tool to limit the expense and complexities of a
divorce or death.

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