In today’s society, prenuptial agreements get a bad rap. When we hear “pre-nup,” we think “Oh no! Another celebrity marriage is ending.” However, prenuptial agreements, also known as antenuptial agreements, may be a useful way to establish the rights and liabilities upon the termination of a marriage by death or dissolution. Here is a sample prenuptial agreement. A dilemma arises because of the implicit question of distrust which may be aroused by entering into an agreement contingent upon the break-up of the marriage. This dilemma is made even worse when typically, a prenuptial agreement is made at a time in a relationship where a couple is at the happiest and most blissful stage of their relationship, right before the wedding.
Given this dilemma, how does one bring it up without causing your spouse to start questioning the strength of your relationship? Even though it may be difficult to approach the subject it may be very necessary to do so. There are circumstances in which prenuptial agreements are critical, for instance, when the rights of children from a prior marriage are at stake or when there is a vast disparity in the financial resources of parties.
What about my “prenup”?
If you are about to go through a divorce and you and your spouse signed a nuptial agreement (either before your marriage or after), you need to inform your lawyer of that fact immediately. That seems like a rather obvious statement, but I have seen cases where the clients failed to mention to their lawyers that a prenuptial had been signed until well into the divorce litigation. It is critical for your lawyer to have a copy of the prenuptial and any amendments that may later have been made to it as early in the process as possible, in order for the lawyer to be able to properly advise you.
Prenups are generally valid in Alabama if certain requirements are met – these basically have to do with full disclosure of the assets and the availability of independent counsel, absence of duress, etc.
If all of the conditions are met and the prenup is valid, then its terms will usually govern the disposition of the assets and debts and terms of any property settlement and/or alimony.
Custody, child support, visitation, and other issues regarding the best interests of the children are generally not issues that can be addressed in the prenup and thus will have to be resolved through the divorce case (through negotiation, alternative dispute resolution or trial).
In crafting a prenuptial agreement there are certain considerations to keep in mind
The facts and circumstances surrounding the execution of a premarital agreement may compel a court to set it aside. An example of this includes if it was executed days or hours before the wedding after all the wedding and honeymoon plans have been made. The court may construe such circumstances as coercive and later invalidate the prenuptial agreement.
The right agreement
If you want to enter into a prenuptial agreement, the best plan of action would be to diligently disclose all your assets and liabilities as part of any agreement. This would mean attaching a schedule that disclosed all your assets. Florida statutes do not require you to disclose your assets if you enter into this agreement before you get married, but divorce courts will not enforce premarital agreements when there is no financial disclosure.
Guidelines for your agreement
Things to ask yourself: Is the agreement fair and reasonable in consideration of the relevant factors at the time the agreement was executed? Was there full and frank disclosure of all assets, or at least a general approximate knowledge of the extent of the property owner? Was the agreement entered into voluntarily (each party should have independent counsel to help support their considerations and avoid conflict of interest)? A waiver of alimony cannot be modified. A husband cannot be released from his obligation to support his wife as long as the marital relationship exists. Child support usually cannot be waived by either spouse. Make sure it’s a valid agreement: it must be written, signed, and acknowledged before two witnesses.
If you have any concerns about drafting a prenuptial agreement or your prenuptial agreement, please contact a divorce attorney in your area.