Prenuptial and Postnuptial Agreements

Marriages in the Newport News area end every day, even those that started out with loving, supportive couples. The divorce process can involve a number of emotional issues which can leave the couple angry with each other, burning up time, money and emotional energy to work out their differences. One way that might help avoid a divorce and lessen the burden if one happens is the creation of a prenuptial or postnuptial agreement.

Financial disagreements are a problem that can lead to other problems eventually resulting in a divorce. A frank, open and honest discussion about finances can clear the air of any misunderstandings and set the stage for a future where both spouses are on the same financial page. Just because one of these agreements is created doesn’t plant the seeds of a future divorce. They’re just a wise way to prepare for the possibility of a divorce and reduce the stress if and when one occurs.

The biggest difference between the two is timing. A prenuptial agreement is signed by an engaged couple prior to marriage. A postnuptial agreement is signed by a married couple.

These agreements involve both parties fully disclosing their financial lives, how they want their finances handled in the present and future. The parties can agree that in case the relationship ends in divorce each party has certain rights and responsibilities concerning the division of property, assets and debts.

The parties could agree amongst themselves child custody, visitation and support issues but such agreements wouldn’t be enforceable if during a divorce one party decides he or she is unhappy with the agreement.

These agreements cover a wide range of issues and all kinds of property, including,

• Who can buy, sell, use, transfer, exchange, abandon, lease, use, assign, create a security interest in, mortgage, take a loan against, dispose of, or otherwise manage or control property,
• How property would be divided if one spouse dies or if the parties separate or divorce,
• How much one party may receive alimony and for how long, and,
• Creation of a will, trust, or other arrangement, including the purchase of life insurance and who’s to be beneficiaries.

Situations where an agreement may be more helpful include when one or both spouses,

• Is heavily in debt,
• Own property prior to the marriage,
• Is wealthy,
• Is remarrying, or,
• Has children from a prior marriage or relationship.

These agreements need to meet certain requirements to be valid.

• There must be full disclosure by both parties during the negotiations,
• The agreement needs to be written and signed by the parties,
• Both spouses must agree to the terms voluntarily, and,
• The agreement can’t be unconscionable (so unequal or unfair that it shocks the conscience) when it was executed.

It would be wise for each person to be represented by their own attorney. Though these agreements can later be changed if both sides agree, without mutual consent that won’t happen. If one party is later unhappy with the contract but the other spouse doesn’t want it amended or revoked, unless there’s a serious flaw that makes the agreement unenforceable, it can’t be changed. These aren’t agreements to be taken lightly and they might potentially have serious and long lasting effects.

If you and your future or current spouse have questions about a prenuptial or postnuptial agreement, including how you can benefit from one and the process that should be followed, Kevin Weldon can help. Call us today at 757-214-1371.