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Premarital and Postmarital Agreements: A Practical Insight

Before tying the knot or even after, couples often consider entering into legal agreements to clarify and dictate the distribution of assets and responsibilities during the marriage and in the event of divorce. These contracts are known as premarital (or prenuptial) and postmarital (or postnuptial) agreements.

Premarital Agreements: Setting Expectations Early

A premarital agreement is executed by individuals planning to get married. This document outlines how assets, debts, and other financial matters will be managed during the marriage and how they'll be divided should the marriage end in divorce or death. The primary goal is to establish clear expectations and avoid future disputes.

Postmarital Agreements: Reinforcing Mutual Understanding

While premarital agreements are made before a wedding, postmarital agreements are executed after a couple is already married. Couples might opt for a postnuptial agreement to address changes in their financial situation, clarify financial responsibilities, or to rebuild trust after a challenging period in the marriage.

The Importance of Fairness

For either type of agreement to be enforceable, they must be executed voluntarily, without coercion. Both parties should fully disclose their assets and debts, and the terms must not be unconscionable. This means that the terms shouldn’t be so one-sided that they are grossly unfair to one party.

The Role of Legal Counsel

While it's possible to draft premarital and postmarital agreements without legal representation, it's recommended that each party consults with their own family law attorney before signing the document. This ensures that each person fully understands the implications of the agreement and that their interests are properly represented.

Protecting Separate Assets

One of the primary uses of marital agreements is to protect separate property. For instance, if one party is coming into the marriage with substantial assets, they might use a premarital agreement to ensure those assets remain separate property, not subject to division upon divorce.

Addressing Spousal Support

Beyond property, these agreements can also address spousal support or alimony. Couples can choose to decide whether alimony will be paid, how much should be paid, and for how long the payments are to be paid, although certain restrictions might apply based on the jurisdiction of the state in which they live in.

Limitations of Marital Agreements

While marital agreements made before marriage can cover a wide array of financial matters, there are limits. For instance, child support and child custody cannot be predetermined in a marital agreement. The courts will always prioritize the best interests of the child over the terms of any agreement.

Challenges and Controversies

Not everyone sees the merit in marital agreements. Critics argue they sow distrust in a relationship or that they are only for the wealthy. However, proponents believe they can foster open communication about finances, reducing the potential for future disputes about money matters.

A Tool for Clarity and Security

Marital agreements, whether premarital or postmarital, provide a framework for couples to discuss and plan their financial futures. While they aren't romantic in nature, they can offer clarity, security, and peace of mind, ensuring both parties are on the same page about their shared financial life.