A prenuptial agreement or “prenup,” is a written agreement or contract signed by parties who intend to get married. It is signed before the marriage. Sometimes parties sign the same type of agreement during the marriage. In that event, it may be referred to as a “post nup”. Typically, a prenup provides for what will occur upon divorce with regard to issues such as division of property and debt, and alimony or spousal support. Usually what a party will get or not get under a prenup in the event of divorce, is far different than what a judge would order upon divorce if there were no prenup.
Often at times a prenup will provide that neither party will get alimony, no matter how long the duration of the marriage or it may provide that a party will not get property or assets which they might otherwise get if there were no prenup. Thus, a prenuptial agreement can help a party avoid paying alimony or splitting property. It can also hurt a party who, if there were no prenup, would be entitled to alimony under the law because of the length of the marriage for example.
Battles often are fought over prenups in divorce courts. The party who feels that they’re getting a bad deal because of the prenup may try and have it invalidated by saying, for example, that they were coerced into signing it or that the other party didn’t accurately divulge their assets, i.e. that they would not have signed the prenup if they knew how much money the other party really had. On the other hand, prenups are often also upheld as valid even if they were made in another state. They cannot be overturned just because they are a bad deal for someone at that point in time (unless the other party didn’t make full financial disclosure of their assets and financial condition).
Prenups are usually non-modifiable. By way of example, if a party is working at a good job when they sign a prenup that waives their right to claim alimony, they will still receive no alimony if at the time of the divorce they are unable to work because of a disability. There are limited rights that cannot be waived in a prenup, i.e. the right to seek child-support if a child is born during the marriage.
If you are considering presenting a pre-nuptial agreement to your fiance, it is best to do it a sufficient period of time before the wedding . That will give the other side sufficient time to contemplate the terms of the prenup and try to negotiate a better deal. It will also allow for the opportunity to secure a lawyer. Doing all of these things may stop the other side from successfully challenging the validity of the prenup upon divorce.
Lastly, a prenup can provide that a party waives certain rights that they would otherwise have upon the death of the other party. Those rights may include the elective share, which is the right to receive a statutory percent of the estate of the other party.
Gourvitz & Gourvitz, LLC has vast experience in drafting, negotiating, and litigating all issues involving pre-nuptial agreements.
