Why you may need a prenuptial or postnuptial agreement

With so many people getting divorced and with so many second marriages and blended families, it is very important to consider a prenuptial or a postnuptial agreement. By executing these documents in anticipation of a death or a divorce, the division of the assets at that time are negotiated prior to the event happening, hopefully preventing extended and extensive lawsuits in the future. This doesn’t mean that an agreement won’t be contested, but if the agreement’s groundwork is laid properly, it will be a difficult burden for a person to challenge the validity or fairness of it.

In all agreements there should be full disclosure of all assets, income, liabilities, and even proposed or projected assets or liabilities that may come in to play in the future. In the event that full disclosure is not made, and to the extent that a person does not list an asset or liability, the agreement may be held to be invalid for the purpose as originally created. Therefore, all parties should be very cautious to provide as much information as possible to the drafter of the agreement to prevent challenges down the road.

Another requirement in most states is that the parties each have their own lawyer. In fact, if they do use a single lawyer to represent both parties, the document may be held to be invalid because one party may not have had adequate counsel.

There are also cases where only one person has counsel and the other person does not. In these cases, the person who does not have counsel may be able to proceed with a valid claim against the agreement for that very reason. Even if they waive the right to counsel, after the fact, they can claim that they were duressed or forced into signing the agreement or were told to not engage the services of an attorney.

The document is especially important in a blended or second marriage when one spouse dies, so the surviving spouse doesn’t have the opportunity to waive the will, which means that they could otherwise take a forced share of the estate even if they were omitted from the will. This right may be waived by the contract of establishing the prenuptial agreement.

Prenuptial and postnuptial agreements are very important and valuable estate planning documents to be considered at the time that the will and/or trust are being established They helps assure that any children from the first marriage receive assets, since even if all assets were held in a trust for the surviving spouse, the possibility exists that they could be dissipated by taxes, expenditures, fees, and possibly long-term care expenses.

Prenuptial and postnuptial agreements may spell out all rights regarding financial support, use of the home, use of a second house, allocation of taxes, etc. This is one of many documents that should only be completed with the advice and counsel of an attorney. Although it is very uncomfortable in many cases to consider this contract, it should be considered as part of the marriage itself. Also, in many situations, clients wait until the last minute to have this document prepared and signed, but case law indicates that the sooner it is signed prior to the marriage, the better chance the document has to be enforced.

By: Hyman G. Darling, Esq.