Pre-marital and Post-marital agreements

(US family law and general advice) This article is brought to you by San Diego Family Law Attorney Tara Yelman of Yelman & Associates.

Pre-marital agreements (pre nuptials) used to have a very negative connotation, but have become more widely-used and socially acceptable in recent years. Due to rate of occurrence, range of wealth and the heightened level of equality between men and women, most courts no longer frown upon prenuptial agreements or assume that either party has a wandering eye or wavering values.

A prenuptial agreement, or “prenup,” is a written contract created by a couple before they are married. A prenup usually lists all of the property each person owns and all of each person’s debts prior to tying the knot, and specifies what each person’s property rights will be in the event that the marriage ends. Reasons that couples get prenups vary, but listed below are some of the most common:

  • To provide clarity about financial rights and responsibilities during the marriage
  • To provide protection from each other’s debts
  • Especially in circumstances when one or both parties has children from a previous marriage, a prenup can provide protection and structure regarding what is given to the kids in case of death.
  • For precautionary reasons: without a prenup a couple will be subject to divorce laws in their state.

If a couple decides to enter into a marriage without a prenup but later notices that they should have done so, they can create a postnuptial agreement. A postnuptial agreement is a contract that is signed after the couple has already been married. Although they are becoming more commonly used, “postnups” are not yet valid in every state and are more likely to be scrutinized by courts because they can be viewed as “divorce-planning tools.” Below is a list of some reasons married couples choose to get postnups:

  • The couple wants to amend their prenup
  • New business ventures: For example, it is common that in the case that one party enters into business with a new partner, the partner will request that the party get a postnup in order to ensure that the party’s spouse does not receive any of the business after the marriage.
  • Separate property is used to purchase community property
  • One party receives a significant inheritance

Most couples are able to create the contents of their prenups and postnups on their own, however it is crucial for each party to hire a separate lawyer to review the contracts and advise each individual client. Entrusting a lawyer is also important to ensure that the document is legally sound, and to avoid the possibility of a court questioning its’ validity.

Divorce Q&A – Family Law Guidance from the Experts

Guest family law Q&A blog post which answers various frequently asked questions, based on family law in England & Wales and general legal guidance.

1. What is the legal status of prenuptial agreements looking ahead to 2013? Are they worth considering?

Since the Supreme Court’s decision in Radmacher v Granatino {2010} UKSC 42 and the review by the Law Commission, prenuptial agreements are becoming increasingly popular. The enforceability and legal status of a pre-nuptial agreement however, still remains in doubt.

Pre-nuptial agreements are not binding in the UK however; the case of Radmacher did take a significant step towards that possibility. The Judges decided that nuptial agreements should be given considerable weight if they were freely entered into by each party with full appreciation of its implications unless the surrounding circumstances deem it unfair to hold the parties to their agreement.

For a pre-nuptial agreement to be enforceable the contents of the agreement must therefore be fair.

The current position in the UK remains that it is the Court, and not the prior agreement of the parties, that will dictate what will happen to the parties’ financial arrangements upon Divorce.

Ultimately the legal status of prenuptial agreements is still debatable however. Divorce solicitors will advise clients on the basis of each case, but the Court is very likely to uphold a prenuptial agreement if the following is satisfied:

  • Each party has received legal advice and there has been full disclosure of assets;
  • There has been no undue pressure or exploitation and the agreement has been freely entered into;
  • The agreement meets the needs of the party who is in a weaker financial position;
  • The reasonable  needs of any children are met; and
  • The agreement has been carefully reviewed each time there has been a change in circumstances during the marriage.

Pre – nuptial agreements can therefore be very useful documents and it is anticipated will often reduce litigation. The agreements are worth considering if you have accumulated a significant amount of assets prior to marriage, you are to receive a significant inheritance or there are business assets that you wish to preserve. Pre-nuptial agreements are proving to be popular amongst people contemplating their second marriages.

2. How long does it usually take to get a divorce?

An undefended Divorce will take approximately six months to reach the Decree Absolute stage, which is the final Decree of Divorce.

If there are complicating factors such as the Respondent is defending proceedings, there is a disagreement regarding the Petition or financial arrangements have not been agreed etc, this can prolong the length of time and therefore, it can take up to a year or even longer if the financial issues are really complicated.

3. Can you get the other side to pay the divorce costs?

Divorces which are based on the Respondent’s fault namely the Respondent’s unreasonable behaviour or adultery; it is normal practice for the Petitioner to seek for the Divorce costs they have incurred to be paid by the Respondent.

As long as the Petitioner has requested in the prayer section of the Divorce Petition for the Respondent to pay the costs of the Divorce, the Court will normally order the Respondent to pay.

If your Divorce is based on a non – fault ground such as 2 or 5 year separation, the Petitioner can always still request that the Respondent should pay the costs but it may result in the Respondent refusing to grant his consent and thereby the resulting in the Petition being unsuccessful. Therefore in these circumstances it is up to the parties to reach their own agreement. More often than not in these circumstances the parties agree to share the costs equally.

4. What advice would you give to someone considering getting a ‘quickie’ online divorce?

There is no such thing as a ‘quickie’ divorce. It is a term which is incorrectly but frequently used by the media. Whether you instruct family solicitors, act in person or use an online service, the same Court procedure is used and the Divorce process will not be any quicker.

Online Divorce services tend to use generic Divorce petitions which are not tailored to individual needs and therefore, it enables some internet based companies to offer discounts. As the saying goes, “You Get What You Pay For”. We would never advise anyone to go for the cheaper option as cheap is not always good. Divorce can be a very stressful period. Therefore, face to face advice and support can prove to be critical.  Good solicitors place strong emphasis on providing an individually client focused, sympathetic, and understanding service which simply would not be available from anyone offering a ‘quickie’ divorce.

It is also worth noting that it can cost a significant amount to correct an improperly drawn Petition once it has been issued, in most case more than the fixed fee which can be offered at the beginning of the matter.

5. Is mediation worth considering to avoid the courts?

Since the 6th April 2011 it has been compulsory for couples to undergo mediation to resolve any disputes before resorting to the Courts, save for cases where there is domestic violence. In light of this, in the majority of cases the parties will have to consider mediation.

Mediation can be more cost effective than the Court procedure and is useful when both parties are willing to negotiate and there has been a full disclosure of assets. If one party is being deliberately uncooperative, mediation will do little to help the parties reach a resolution and the assistance of the Court may be required.

This article was written by Manak Solicitors, a leading firm of family and divorce solicitors in Kent. All our family & matrimonial solicitors are members of “Resolution” panel and the family & matrimonial partner at Manak Solicitors LLP is a member of “Law Society Family Law Advanced” panel both of which are accreditation schemes which places strong emphasis on mediation.

Is A Prenuptial Agreement After Marriage Possible?

Technically, a prenuptial agreement, also known as a premarital, antenuptial, prenup and/or prenupt, is a contract for couples intending on legally consummating their relationship. If the couple is already married, the agreement is called a postnuptial. Chances are the latter is more complex due to the circumstances involved with designating the collective assets of married couples, versus the individual assets of most engaged couples.

The word prenuptial is taboo in many relationships, but prenuptial and postnuptial agreements actually offer several advantages. They allow a couple to mutually divide and allocate all property and/or assets owned prior to marriage. Although this may be a sensitive topic to some, ultimately, the purpose of a prenuptial or postnuptial is to reduce stress, as well as legal costs, in a worse case scenario.

If you honestly think it will be difficult to talk about a prenuptial agreement with your mate, you might want to read on.

Is a Postnuptial Agreement Right for Me?

There are various answers for why people decide to get prenuptials or postnuptials. Of course the hope is that your prenuptial agreement will never be executed. But in the remote possibility that you ever appear in a court of law, the chances of the judge throwing the book at you will probably be minimized!

In certain U.S. states judges do not have to honor any of the nuptials presented in their courts. Some judges have the authority to only honor the fact you are legally married. Fortunately, many judges will generally respect the mutually agreed upon prenuptial of litigants.

A Sensitive Subject

The notion of a prenuptial might be inconvenient, but in the end, it truly could be beneficial for you and your spouse. A prenuptial and/or postnuptial agreement is probably the safest way for a couple to secure their assets, as well as your rights.

Discussing a prenuptial agreement with your mate could easily turn into a rather sticky situation, especially if you do not approach the topic correctly. Despite this, the agreement can be extremely beneficial for all parties, because it virtually excludes couples from having certain disputes.

Unfortunately, the longer you wait to learn about nuptials, the harder it might be to plan it later. The only thing left to do is consult a family law attorney to ease your anxiety, especially if this is a sensitive topic in your relationship.

Guest article: Protecting your future – considerations for prenuptial agreements

Below is a guest article regarding divorce and protecting your future.

Protecting Your Future

There are not many things that will deflate the elation of wedding planning than asking your future spouse to sign a prenuptial agreement. There is so much taboo associated with this legal protection that often times it is dismissed in order to protect the feelings of the one you intend to spend the rest of your life with. Unfortunately, statistics show that it is in your best interest to trek down this road.

Divorce is not a Preplanned Event

In just about every marriage, there was not one bride or groom that said, “I think I’ll be ending this marriage in a divorce in the future”. When getting married, it is the intention of both parties to remain married until death do them part. Although this is the intention, it is not always how it works. Sadly, the current divorce rate is approximately 50% for a first marriage and steadily increases for every marriage thereafter. You wouldn’t hand your hard earned money over to someone with a 50% chance that you will get it all back, would you?

Stopping the Clock

All that a prenuptial agreement will do is stop the clock and give you a new starting point with your new life partner. What it is saying is that, in the event of a divorce, what was obtained prior to a legal union remains with the original owner and that everything obtained after is joint property. This will give you the opportunity to build your marriage on a fair playing ground where you work together to build your financial wealth.

How to Ask Without Sounding Untrusting

There are so many reasons why a prenuptial agreement should be signed prior to marriage, that it is difficult to give specifics. Because of this, regardless of your situation, you must go with sincerity and honesty. Although your significant other may get upset at first, if you are truly sincere and honest in your request and the love is strong, most likely they will come around.

Listen to Others

When making a decision like this, you are probably not thinking with rationality, but instead with your heart. You do not want to hurt your future spouse’s feelings, so you would rather protect them by not asking at all. In this case, you should seek counsel of those you trust. Ask your parents, lawyer, accountant, friends, siblings, and even your significant other’s family and friends. Doing this may just provide you with all the answers you need for making this decision.

Do not leave to chance what you can protect. Although following through with this protection can be difficult, it could prove to be well worth it in the future. We know not what the future holds, however we can do everything in our power to make the outcome benefit all involved.

Stephen Minton is a freelance blogger for prenuptialagreements.org, a site that can help uncomplicate getting a Name change after marriage for men.