One of the most important aspects of marriage is the certainty. Unfortunately, with approximately 50% of all marriages ending in divorce, the only way that a couple can provide for certainty is to enter into a premarital or prenuptial agreement. With such an agreement the couple knows where they stand during the marriage. If the unfortunate occurs and the couple gets divorced, a premarital or prenuptial agreement can help to avoid legal and financial uncertainty.
Definition of a Premarital Agreement
A premarital agreement may be entered into by competent adults who are legally able to marry. The purpose of such an agreement is to avoid the usual legal consequences of joining the estates, property, or assets of two parties by marriage. Many people have an established estate, and/or established responsibilities to prior family, which they would like to see protected from the new spouse and new obligations. This can only be done by the consent of both parties to the marriage with full knowledge of each other’s financial situations.
Enforceability of Prenuptial Agreements
It is important to understand that enforceability of the agreement is the most important concern. Sometimes compromises must be made to ensure enforceability. An agreement that was made without full disclosure or entered into under duress or without proper legal advice probably will not hold up in court. You must be aware that such a document will almost always be scrutinized by a court upon enforcement to determine if it was fair at the time of signing and whether the parties understood it and had proper legal advice.
Considerations to Ensure Enforceability
To avoid the appearance of duress, the agreement should be done as far in advance of the wedding date as possible, and before expensive preparations are made. Both sides should have independent legal counsel to advise them. Done properly, it could serve as the basis of an uncontested divorce if the marriage ends, thus avoiding a costly legal battle over these issues.
A marital agreement can be made after the wedding whenever differences arise between the parties regarding the future financial issues. The agreement must be based upon some consideration other than the marriage itself. Sometimes such an agreement is made as part of a reconciliation of the parties or following some other dispute. Such an agreement has been held to be just as enforceable as a premarital agreement.