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Pre-Nuptial and Post-Nuptial Agreements

For people soon to wed, marriage can be both exciting and terrifying. Marriage is an institution that combines 2 people and their lives; not only do you gain extended family, but you also share financial responsibilities too. These include pre-existing and future debts (credit card debts, collection accounts, student loans, etc.), joint financial accounts, etc.

No one wants to think about divorce, but it can happen, and it does. Marital agreements are contracts between spouses that protect an individual's assets in the event of divorce. Because assets are joined in marriage, when you divorce those shared debts and accounts can adversely affect your quality of living after divorce. Pre-Nuptial agreements signed before marriage, and Post-Nuptials which can be signed after the marriage, protect each spouse from losing financial property and gaining debts that do not belong to them. Some agreements even set out the support obligations of each spouse.

Difference Between Pre-Nuptial Agreements and Post-Nuptial Agreements?

A Pre-Nuptial Agreement (also called "premarital agreement") is signed by the potential spouses before the marriage. A Post-Nuptial Agreement is put in place by the spouses, after their marriage. These contracts do not have to be renewed and they do not expire.

Why would you need a Marital Agreement?

  • It can bring certainty to the future financial situations in the event of divorce,

  • It can protect individual assets (life insurance policies, retirement plans, pensions, etc.) and potential business interests from being divided between spouses in the event of divorce,

  • It helps determine alimony costs and duration,

  • It may ensure individual's income earned during marriage is not distributed to a spouse in the event of divorce,

  • It protects an individual from incurring the debts of their spouse during marriage and protects against legal obligations of debt repayment on those debts after divorce.

All Prenups/Post-Nuptial Agreements must be in writing and signed by both spouses, with each spouse having independent, competent counsel.

Do I Need A Pre-Nup?

It is not a romantic topic to bring up after the big question, but Prenups are a wise and safe choice to consider before going into marriage. At J Hardy Family Law, we believe that a marital agreement is ideal for:

  • People who owned assets prior to the marriage that they want to protect,

  • People with children from a previous relationship who want to protect their child's inheritance from being subject to division in the event of divorce, or

  • People who have businesses they want to keep separate from their marriage in the event of divorce.

A legal and enforceable marital agreement, must meet certain requirements such as:

  • All marital agreements must be in writing and signed by both spouses,

  • Full disclosure of financial state of each spouse and financial statements (reporting of assets) are required,

  • Both spouses must have separate attorneys from separate firms to review the information and the agreement before it can be binding.

If You Divorce

During a divorce, the spouse that wants to enforce the Pre-Nuptial or Post-Nuptial agreement must file a complaint with the court. The marital agreement must be fair to both spouses and agreed to voluntarily for a judge to put the agreement into effect.

Invalid Agreements

There are also conditions that will invalidate a marital agreement. A marital agreement must be voluntary between both spouses.

Coercion or threatening physical and/or psychological harm, fraud (lying about assets or debts before signing), or one spouse not being able to review the agreement with an independent attorney are reasons that a marital agreement would not be honored in court.

Jessie Hardy and the team at J Hardy Family Law can help you explore options choose the right marital agreement. Contact us for a consultation today!

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