Even though almost half of all marriages in the United States end in divorce, when planning to get married, most people don’t consider what would happen if they separated or divorced. However, you can secure your future with a prenuptial or postnuptial agreement.

A prenuptial or postnuptial agreement is a contract between you and your fiancé or spouse before or after the marriage that identifies the property rights of both and provides for the property’s distribution in the event of legal separation, divorce, or death of a spouse.

A prenuptial or postnuptial agreement can address such issues as:

• distribution of premarital assets;
• payment of premarital debts;
• division of marital property and home;
• allocation of gifts, trusts, or inheritances as separate property;
• provision for spousal maintenance (a.k.a. “alimony”);
• apportionment of life insurance, death or retirement benefits; and
• arrangement for health insurance, medical care, or long-term care.

Without entering into a prenuptial or postnuptial agreement, the court will determine how the marital property is distributed and whether maintenance is provided.

Prenuptial Agreements

A prenuptial agreement (a.k.a. “antenuptial agreement” or “premarital agreement”) is a written contract entered into by a couple before the marriage. The contract allows the couple to safeguard their legal rights when they marry and, perhaps more commonly, specify how their property is distributed if the marriage ends by death or divorce.

A well-written prenuptial agreement allows a couple to avoid many of the default rules and legal pitfalls that might otherwise govern a divorce, including laws pertaining to property distribution, taxes, probate, bankruptcy, retirement benefits, savings accounts, and maintenance payments.

Postnuptial Agreements

A postnuptial agreement addresses many of the same legal issues as a prenuptial agreement; however a postnuptial agreement is signed after the couple is already married.

Why Use a Prenuptial and Postnuptial Agreement

Although some people might think a prenuptial or postnuptial agreement is just for the wealthy, people of modest means are increasingly using prenuptial and postnuptial agreements to secure their property rights and interests in the event of divorce. A prenuptial or postnuptial agreement can be used to:

• Pass Property to Children from a Prior Marriage. A spouse who has children from a prior marriage may use a prenuptial or postnuptial agreement to specify what happens to their property when they die, so they can pass property on to their children without their spouse claiming a large portion of their estate assets.
• Clarify Financial Rights and Responsibilities during Marriage. Whether or not a couple has children, a prenuptial or postnuptial agreement can clarify each spouse’s financial responsibilities during the marriage.
• Avoid Arguments in Case of Divorce. One of the most common reasons for a prenuptial or postnuptial agreement is to clarify up-front, in case of divorce, how property would be distributed and whether spousal maintenance (a.k.a. “alimony”), provided.
• Protect Against One Another’s Debts. A prenuptial or postnuptial agreement can specify how one spouse would not be responsible for the debts of the other spouse.

If You Do Not Have a Prenuptial or Postnuptial Agreement

If you choose not to make a prenuptial or postnuptial agreement and you seek a divorce, then the court will distribute the marital property equitably. This means that your property will be divided fairly, but not necessarily equally. The court’s decision will also address maintenance payments.

Any agreement made in a prenuptial or postnuptial agreement regarding child support, visitation, or child custody is likely unenforceable. Instead, the judge will determine issues of child custody and support at the time of the divorce proceeding.

Semita Legalis: Professional Guidance for Your Legal Journey

If you are considering a prenuptial or postnuptial agreement, Semita Legalis can help. Lead attorney David Breon and Semita Legalis guide our clients to a brighter future by providing clear, helpful legal counsel, committed advocacy, and fair rates.

Contact Semita Legalis today to schedule a confidential consultation to discuss your case.