Preparing a Prenuptial/Antenuptial and Postnuptial Agreement

Preparing a Prenuptial/Antenuptial and Postnuptial Agreement

Traditionally, these agreements have been used by parties who, having previously experienced a divorce, want better protection of their assets in the event of a subsequent divorce. Also younger people who are either planning to marry or who have recently married have contacted us to prepare a pre or postnuptial agreement for them, in part due to the information explosion and to encouragement from parents.

These agreements are prepared to deal with ”what happens if” the parties wind up facing a divorce. Having an agreement worked out in advance is prudent but the agreement cannot deal with every possible issue. It will only address those issues with which the parties wish to deal and also with those that may be foreseeable.

A useful and practical method to employ when preparing these agreements is to state that all property individually owned by one of the parties remains owned by that party and only the property to be placed in joint names is jointly owned. Further, the agreement should state that, with complete financial disclosure acknowledged, neither party has any claim to alimony, marital property, or a right upon the death of the other spouse to obtain claims or property against the deceased spouse’s estate. However, despite the language used to limit the rights of each of the parties, each party still has the right to will gifts or to contract benefits and assets to the other spouse. There are other approaches to the preparation of these agreements and many other ways to meet the needs of the parties. The final document will be prepared giving priority to your specific needs and desires.

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Financial disclosure is of utmost importance and it must be accurate and complete. If it is not, the Agreement may be challenged. Full financial disclosure is a necessary element of both pre- and post-nuptial agreements. Courts are more often willing to void and not enforce the Agreement because of a lack of full financial disclosure. Additional challenges could be based on contractual defenses such as fraud and/or undue influence.

We realize that your financial information takes time to gather and so it is not a prerequisite to your first visit to our offices. The benefits of having this information initially however are many. We want our first meeting with you to be as focused as possible so we are efficient and effective. If you want to maximize the effectiveness of the consultation, completing a Confidential Information Form will help. Full financial disclosure of your information is required during this process, so providing the information as early as possible will allow us to focus on what is important. As a Columbia, Maryland divorce lawyer practicing in Howard County, Maryland, and in surrounding counties, we use the three principles of management – planning, organization, and control.

Each party must be separately represented by an attorney. It is unethical for one attorney to represent both parties. Historically when that has occurred, the courts have thrown out the Agreement on the basis that it was not enforceable.