A prenuptial agreement is an agreement entered into before marriage by a couple who wish to establish how their property is to be divided in the event the marriage fails and they seek a divorce. Sometimes such agreements are referred to as antenuptial agreements. These agreements may also determine the parties interest in each others estate in case of death.
A poorly drafted prenuptial agreement can be thrown out by the court.
Often people who acquired property prior to the marriage wish to protect such property in the event of a divorce. Although the divorce law does protect a person’s separate property in a divorce, there are limits to such protection, so that the property can only be secured by contract, with a prenuptial agreement. Often in the divorce, a court will find that separate property has been transformed into marital property, to be divided in a divorce. A prenuptial agreement can avoid this, and clarify each spouse’s rights in the property. Real estate and family businesses are particularly liable to being transformed, at least in part, into marital property in a subsequent divorce action.
A prenuptial agreement is also important in determining each spouse’s rights to the estate of the other. This is particularly important in the case of a second marriage, where there are children from a first marriage. Without a prenuptial agreement, the children may be cut out of part of their inheritance by mistake, where nobody considered what will happen without a prenuptial agreement.
In the law, by these agreements, the parties are opting out of the equitable distribution laws in divorce by which the couple’s have their property divided up by the judge. The may also be opting out of the estate laws concerning spousal rights in the case of death of the other spouse.
A prenuptial agreement may be challenged after it is executed up to and including the time of divorce.
Both parties to a prenuptial agreement are entitled to be represented by their own lawyer.
Prenuptial agreements are frequently challenged on the grounds of fraud or duress. They are also frequently challenged if they were poorly or improperly written or signed. A divorce court may set aside a prenuptial agreement if it finds it “unconscionable,” which would require extreme overreaching by one party. Prenuptial agreements may also limit or waive a party’s right to alimony in a divorce. The court may set aside an alimony waiver that it finds patently unfair.
It thus pays to have your prenuptial agreement prepared by a Family Law expert with many years of experience in these matters..
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