Prenuptial and Post-Nuptial Agreements
Prenuptial (before marriage) and post-nuptial (after marriage) agreements spell out how a couple will divide their assets if their marriage dissolves. These agreements cover each spouse’s financial rights and obligations during the marriage, and define how certain issues such as alimony and property division will be treated if the marriage ends in divorce. If you are considering a nuptial agreement, contact the San Antonio prenuptial lawyers of Allen & Roig, LLP to ensure that your agreement is prepared in a clear, concise, legally binding manner. The same is true for preparation of a post-nuptial agreement.
What Are the Reasons for These Agreements?
These agreements are important when one member of the couple has significant assets, a large estate, or expects to receive a large inheritance or distribution from a family trust. Some couples worry that this shows a lack of trust for the other partner, but that is not necessarily the case. While no couple enters into marriage expecting it to end, those who have smart, candid discussions and work out these agreements beforehand may actually make things easier and less emotional for themselves in the long run.
Are These Agreements Enforceable?
If you already have a prenuptial or post-nuptial agreement and are considering divorce, this is one of the first things that should be discussed with a nuptial attorney in San Antonio, TX from the firm of Allen & Roig, LLP. In most cases you are obligated to the terms of the agreement. However, an agreement won’t be enforceable if it can be proven that it wasn’t signed voluntarily, was signed because of fraud, duress, or coercion, or was unconscionable (“illegally unfair”) when signed. The person who challenges the agreement has the burden of making the case to the Court as to why the agreement should not be enforced.
The most common reason for challenging a prenuptial or post-nuptial agreement is usually due to the parties not sharing enough financial information with each other prior to signing. Many times a case can be made that the challenging spouse wasn’t given a fair and reasonable disclosure because assets were hidden, or they didn’t waive in writing their right to receive a fair disclosure, or did not have, or could not reasonably have had, the accurate knowledge of the other spouse’s financial circumstances. In addition, sometimes the challenging spouse will say that the signature on the agreement is not even theirs.
What is the Courts’ View?
These agreements are given more scrutiny by the Courts than an average contract. The Court will carefully examine the circumstances surrounding the agreement, believing that this type of agreement was most likely executed during an emotional and complex time when other extenuating factors were involved.
If a judge thinks that the prenuptial or post-nuptial agreement is extraordinarily unfair, it may be decided that the agreement is “unconscionable.” However, this happens only in rare circumstances and even then, that decision is not enough to void the agreement. The challenging spouse must still prove that they didn’t receive a proper financial disclosure. Also, if an agreement is so one-sided that the enforcement of it would require one spouse to go on public assistance to survive, the Court may instead force the higher-earning spouse to pay alimony to the lower-earning spouse, even if the agreement didn’t provide for their support.
What is Your Best Option?
Handling nuptial agreements can be very complex. If you wish to create or already have a prenuptial or post-nuptial agreement, this absolutely needs to be addressed early in the marriage or divorce process- no matter what side you are on. The San Antonio prenuptial attorneys of Allen & Roig, LLP have vast experience dealing with complicated issues just like these. Contact us right away to discuss! Call (210) 377-2529 Today!