Prenuptial and Postnuptial agreements two kinds of contract that can be entered into either before or after a marriage which set forth the rights of each party in the event of a divorce or death of the other party.
These contractual agreements fall into two basic categories and are characterized by the time period during which they were executed. When the contract is entered into by prospective spouses, it is termed an antenuptial or premarital or prenuptial (pre-marriage) agreement. When the contract is entered into after the marriage takes place, it is termed a postnuptial agreement.
Practically speaking, there are very few differences between the two types of agreements. Although this article uses the term prenuptial agreement or “prenup,” most of the discussion applies to postnuptial agreements as well.
Prenups tend to be most popular among three groups:
- People who have children from a previous marriage and want to protect the children’s interests.
- People who have been through a difficult or prolonged divorce in the past, and want to make sure that it doesn’t happen again.
- People who are entering into a first marriage with significant assets, or with an expectation of a large inheritance.
A common arrangement is for each spouse to keep the property they bring to the marriage, and to split any property they acquire after the marriage. However, some couples plan to maintain completely separate assets even after they are married. Still other couples set things up so that how their assets are split will depend on how long the marriage lasts.
From an estate planning standpoint, a prenup can have each spouse elect out of their right to inherit from each other. Without a prenuptial agreement, it is improper to otherwise cut out your spouse out of their estate and a surviving spouse who has been cut out (without a prenuptial agreement) may elect to take against the estate.
In Missouri, a prenuptial agreement will be enforced if the parties enter into it freely, fairly, knowingly, with full disclosure, and the agreement is not unconscionable.
Prenuptial agreements must be drafted very carefully to ensure they are upheld in court.
Whether a prenuptial agreement is upheld in court depends on a few factors.
First, each spouse should be represented by a different lawyer, so it’s clear that each one signed the agreement voluntarily and understood fully the agreement meant.
Second, the agreement should be signed well before the wedding. If the agreement is signed just prior to the big day (or, as has happened, the day of the wedding), a spouse might later claim that he or she was pressured into it at the last minute. Prenuptial agreements have been not been upheld under these circumstances.
Third, it is critical that both parties fully and completely disclose all of his or her assets. Part of the agreement is, in fact, a full disclosure of everything each spouse owns at the time of the agreement. If the agreement is ever challenged at a later date, one of the factors the court considers is whether the parties disclosed fully and completely all of their financial assets and liabilities.
Finally, the agreement should be fair and not one-sided. Obviously, this is a subjective factor, but, when weighed with all of the other factors, can be fairly easily determined by a court.
A party contemplating a prenuptial or postnuptial agreement should contact an attorney who has experience in drafting these types of agreements. These type of matters usually come into my office because of the estate planning aspects. Some but not all divorce attorneys also draft these documents and can advise clients.