Premarital and Post Marital Agreements
A Judge once described a premarital agreement as the “least romantic document” that he’s ever seen! While such an agreement admittedly might take some of the romance from a relationship which is moving toward marriage, in fact it’s value far outweighs any such inconvenience. When a couple takes the opportunity to prepare such an agreement, they will engage in a discussion of financial and property-related matters that will become necessary aspects of their future married lives.
Mark Soboslai works with clients before marriage to assist with the negotiation and drafting of a premarital agreement with a view toward achieving a fair, equitable and mutually acceptable plan in the event the couple later faces the unfortunate circumstance of a future separation or divorce.
What is the Difference Between a Premarital and Postmarital Agreement?
As its name implies, a premarital agreement is entered before divorce and a post marital agreement is one that is entered after the couple has married. The legal requirements for such agreements to be valid and enforceable are quite similar. These are usually discussed in detail during an initial consultation with Attorney Soboslai. The following are a few general ideas to consider in preparation for a more in-depth discussion.
What is the Purpose of a Premarital or Post marital Agreement?
A premarital or postmarital agreement is intended to avoid the emotional trauma and expense of an adversarial court battle if the couple later decides to divorce. Assuming the court finds the agreement to be valid, there is far less conflict in the resolution of the legal separation or divorce because the Courts will follow the terms and provisions of a valid agreement. Less future conflict means far less cost and expense.
A postmarital agreement is used by married couples who may not want to divorce but, instead, prefer to clarify and define their financial rights, benefits and responsibilities during the marriage. A postmarital agreement may later provide a foundation for a couple to seek a judgment of Legal Separation or Divorce.
Elements Of A Valid Premarital or Postmarital Agreement
Each case is unique and, therefore, the specific requirements for a particular agreement in each situation is discussed in detail after Attorney Soboslai has been retained.
Generally, the following elements must be included for a premarital or postmarital agreement to be valid:
- The agreement must be in writing and signed by both parties. An oral prenuptial or premarital agreement is not valid.
- There must be “full and fair disclosure” of each party’s financial circumstances to the other without any significant omissions.
- Each party must have independent legal representation.
- Each party must have the mental capacity to understand and know the terms and provisions of any agreement and there must be no coercion or duress at the time when the agreement is negotiated and signed.
- An agreement signed shortly before the marriage takes place may later be said to be signed under duress. Therefore, it is best if the agreement is prepared and signed sufficiently in advance of the actual marriage to overcome any later allegations that it was signed at the “last minute” under duress.
- The agreement must not be unconscionable. In some circumstances, an agreement that may not have been unconscionable when signed may be unconscionable later at the time of the divorce. It is important to note that the term “unconscionable” is a very high standard. This means that an agreement could be “unfair” but if that same agreement does not “shock the conscience,” it will not be “unconscionable.”
- The agreement may not have any term that could be detrimental to a court’s determination of child custody and support.
Contact Mark Soboslai for Further Information
Mark Soboslai will usually recommend that each client use the collaborative process to assist with negotiation and drafting a premarital or post marital agreement. In some cases, we may recommend obtaining the advice and assistance of financial or tax professionals to assist with planning for the allocation of existing or future assets in ways that meet your needs and interests. Contact us to arrange for a consultation at: (203) 226-5759 or via email at: Mark@markslaw.net.