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14. Prenuptial Agreements


Prenuptial Agreements are also referred to as premarital agreements, antenuptial agreements or marital agreements. These are private agreements between a couple contemplating marriage. You may also enter into a private agreement after the marriage that is called a postnuptial agreement. If you have such an agreement it will likely make the divorce process easier and will help determine how your case is handled. Be sure to tell your lawyer if you have a prenuptial agreement and bring a copy to your first meeting.
The content of a prenuptial agreement can vary widely. Typically a prenuptial agreement customizes the arrangements of your marriage. This would include provisions for determining how the property owned by each of you prior to the marriage, and the property that is acquired during your marriage, is to be treated in the event of a divorce; provisions for determining how property will be handled in the event of the death of either of you during the marriage; provisions for determining how the income and earnings of each of you are treated during the marriage; and determining to what extent a spouse is entitled to alimony or spousal support if there is a divorce. Provisions relating to custody and child support are usually not included because these issues must be determined based upon the best interests of the children at the time of the divorce.
The laws about prenuptial agreements vary from state to state, although they are generally subject to the same principles. If the requirements of the laws of your jurisdiction are met, prenuptial agreements are generally considered to be valid and enforceable if there is a divorce. There are several ways that a prenuptial agreement may be challenged. These include lack of voluntariness, unconscionability, and a failure to disclose your assets. It is very expensive to challenge the validity of a prenuptial agreement during the divorce process and this should be discussed with your attorney.  Many agreements contain language that state you will be required to pay the other spouse’s attorney’s fees if you challenge the validity of the prenuptial agreement and your challenge is not successful.

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