Prenuptial and Postnuptial Agreements

Although an agreement which seeks to protect assets or define the parties’ rights in the event of their subsequent divorce was long considered to be invalid as against public policy because these contracts were thought to facilitate divorce, but with the advent of no-fault divorce, the law now recognizes and enforces prenuptial (or antenuptial) agreements. Once considered only when a very wealthy party desired to prevent the soon-to-be spouse from obtaining a large alimony or equitable division clam, many couples today are just as concerned over defining their rights in most of the possible claims each would have, given the cost and uncertainty of divorce. The parties simply enter into a contract which pre-determines such issues as alimony, division of property, marital debt or even attorney’s fees, although custodial issues, because they are considered as always in the breast of the court, are generally not part of the agreement.

The basic tenets which make such agreements enforceable are (1) was the agreement obtained by fraud, duress, or mistake, or through manipulation or nondisclosure; (2) is the agreement unconscionable; or (3) have the facts and circumstances changed since the agreement was signed so as to make the court refuse to give it credence because it is now unfair or unreasonable. In attempting to enforce and use the prenuptial as a basis for resolving the divorce, a party may find that failing to fully disclose his or her assets is frequently utilized as a defense.

Many times a postnuptial agreement (after the parties have married) is employed to clearly define the rights of the parties in the event of divorce and could be coupled with a reconciliation of the parties, especially when one of the parties may have strayed from the marital bond. The same criteria enforcing prenuptial agreements is employed for postnuptial agreements.

Parties also contemplating what should happen upon their demise may use prenuptial agreements to provide for that eventuality, or even what should occur when a spouse becomes disabled. Even more exotic language might be included such as defining the daily chores for the spouses, but their efficacy is questionable.

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