According to at least one poll, the number of couples getting a prenuptial agreement is increasing. Couples are marrying later and second marriages are more common. Parties are coming into marriage with more income, assets, debt and possibly children. Consequently, there are strong reasons to sign a prenuptial or postnuptial agreement to protect both sides in the event of death or divorce. While many of these couples aren’t rich and don’t have complicated finances, they should treat a prenuptial agreement seriously and consult a lawyer for assistance in negotiating and drafting the agreement.
What Is a Prenuptial or Postnuptial Agreement?
A prenuptial agreement is an agreement signed by a couple in anticipation of marriage. Typically, it addresses how the couple wants to handle financial matters in the event of divorce, separation and death of one spouse. The couple can decide the division of property, spousal support and inheritance rights.
A postnuptial agreement is the same as a prenup but it is signed after the couple has married.
Prenups and postnups offer many benefits including encouraging couples to discuss and address financial issues before they become a problem. The parties are required to fully disclose their finances but they should also talk about their financial expectations and values during the marriage. These can be difficult conversations but discussing how they will manage money separately and together can help them avoid disputes later and make their marriage stronger. Negotiating these agreements also helps couples learn how to have that difficult conversation when problems arise in the marriage.
Are You Required to Have an Attorney for a Prenuptial or Postnuptial Agreement?
There is no requirement that parties have an attorney. Individuals have the right to negotiate and represent themselves in a transaction. The court won’t interfere and generally will strictly enforce the terms of the agreement even if it is a bad deal for one of the parties. Just because a party was not represented by counsel is not necessarily grounds to throw out the agreement if the party had an opportunity to get an attorney but chose not to do so.
While parties have the right to handle negotiating and drafting an agreement on their own, it isn’t a good idea. Matrimonial laws can be complicated and nuanced. The parties may not fully understand their rights and may sign them away without appreciating what they are giving up or may promise something that they didn’t have an obligation to do.
There is no such thing as a standard form of prenuptial or postnuptial agreement. Every couple has unique circumstances. An experienced matrimonial lawyer has the skills to see issues that the parties may not realize and can tailor an agreement to address the parties’ needs and goals.
If you are considering a prenup or postnup, contact us to discuss how we can help you achieve a positive outcome.
