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Prenuptial Agreements

A prenuptial agreement is a contract entered into by a couple before they are married which provides how property, Maintenance (Alimony), debts, etc. are to be handled should the couple divorce. Generally, the prenuptial agreement is not terribly lengthy, nor is it detailed. However, there are certain situations when it can become fairly long if one individual possesses quite a bit of property and he or she wants it mentioned and handled with specificity.

In terms of what the agreements generally provide, provisions are usually included where each spouse agrees not to pursue requests for maintenance, that each would cover his or her own attorney fees in the divorce, and that certain types of property will not be subject to division. Essentially, it is a contract which provides in advance how the logistics of a dissolution of marriage will be handled should it occur (N.B.: should their be minor children subject to the divorce, the Court will have the final say in what is or is not permissible — child custody and child support cannot simply be contracted for without Court approval).

Because a prenuptial agreement is a contract, all the rules for contracts apply. One worth noting here is that prenuptial agreements have been known to be attacked on the basis of capacity. Two parties to a contract must enter into an agreement freely, voluntarily and with sound mind. Given the sometimes contentious nature of a prenuptial agreement, it can be attacked on the grounds of duress or adhesion (e.g.,”sign this or we can’t get married”). To alleviate any capacity concerns, it is imperative to fully discuss the contours of the contract, give both parties ample time to review its terms and conditions, and to give both parties an opportunity to consult with legal counsel. It would also be advisable to have the document notarized, and maybe even witnessed.

Although prenuptial agreement can be somewhat counter-intuitive before getting married, when properly drafted they can have the effect of saving a lot of money and avoiding a lot of aggravation and turmoil.

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