Pre / Post Nuptial Agreement

When people marry after the death or divorce of their spouse, they usually wish to insure that their assets go to their children, relatives or other beneficiaries from their prior marriage and not to the new spouse. For this reason, many couples make a contract prior to the marriage that defines the rights and obligations of each spouse. I recommend that a man or woman embarking on a new marriage should have a pre-nuptial agreement.

Premarital Agreement A premarital agreement is an unusual contract, and not a romantic one that, contemplates the breakup of the marriage and the rights of the parties upon the death of one spouse. No other contract can address such matters as child custody, child education, spousal support, terms for property distribution for each spouse, cost-sharing of food, rental or mortgage payments, utility payments, travel expenses as to what assets go to the heirs or beneficiaries of a spouse when he or she dies or when a marriage ends in divorce. Most couples entering into a subsequent marriage never consider these things. Verbal agreements are difficult to enforce since the surviving spouse (in the event of death) cannot testify in court as to what the deceased spouse said (Dead Man’s Law).

Postnuptial Agreement If a couple is already married and does not have a prenuptial agreement, then I recommend a postnuptial agreement. A pre or post nuptial agreement can and should contain just about any provision that the parties want in regard to how they will conduct their marriage. For example, there can be provisions relating to the payment of alimony or the waiver of alimony and attorneys fees if a separate estates marriage is contemplated. The agreement should contain who gets what or who does not get what upon the death of the first to die.

Without a pre or postnuptial agreement, laws and the courts will determine the property distribution, financial obligations, and child-rearing questions that face a divorcing couple. Under the property distribution laws in all states, a spouse who brings a large amount of cash, property, and other financial holdings to a marriage and makes them part of the marital estate (combining them with joint marital assets of both parties) may lose much of that property to the other spouse upon divorce. A spouse who brings substantially more money or property to a marriage may want a premarital agreement to protect some or all of those assets in the event the marriage fails or upon death.

Both parties to a pre or post nuptial agreement should have separate attorneys. One attorney should not represent both parties to the agreement because each party is waving, releasing or relinquishing rights in the assets and income of the other upon death or divorce, it is important that each party receive separate legal advice. Having the other spouse review the agreement with separate counsel prior to signing makes the agreement less subject to challenge later.