Many people never think about getting a prenuptial agreement before tying the knot. Some may fear what their fiancée might say if confronted with the idea of a prenup. However, increasingly for couples who are getting married a second time or are involved in a family business, a prenup can be a good idea while protecting the interests of both parties.
Prenuptial and postnuptial agreements can be subjected to scrutiny by the courts in the event of a divorce, so anyone considering a prenup should talk to their family law attorney to make sure the agreement will be enforceable. If you are considering a prenup or a spouse is challenging the prenuptial agreement, contact the Joshua Wilson Law Firm today.
Prenuptial Agreements in Missouri
A prenuptial agreement is a contract entered into by individuals in consideration of marriage. The agreement provides for how certain assets, property, and financial responsibilities will be treated in the event of a divorce. The terms of the prenuptial agreement can provide for:
- Individual assets,
- Marital assets,
- Business property,
- Spousal maintenance,
- Individual and shared debts, and
- Real property.
Without a prenuptial agreement, property and assets will be divided according to state law. If the couple cannot come to a mutual agreement on property and spousal maintenance, the court will make that decision. With a prenup, the contract will generally provide for how the property is divided, as long as the agreement is considered enforceable.
A post-nuptial agreement is similar to a prenup but it is entered into during the marriage. There may be a number of reasons why a couple would enter into a postnuptial while they are still married. The couple may have an existing prenuptial that they would like to make changes to, because of a change in circumstances. Like a prenup, a postnuptial can also provide some clarity for the couple on how certain assets and property will be handled after divorce.
Who Needs a Prenuptial Agreement?
There are a number of reasons why an individual or prospective couple could benefit from a prenup. There is an idea that prenups are only for wealthy individuals who want to protect their assets from a future spouse in the event of a divorce. However, both spouses may be in a position where they can benefit from a prenup. Situations where a couple may want a prenup include:
- Individuals who previously went through a divorce and want to avoid any potential disputes over property or assets in the future;
- Individuals who have children from a previous marriage and want to provide for their children or grandchildren;
- Individuals involved in the family business and want to protect the business assets and maintain the business in the event of divorce;
- Couples where one spouse is giving up a career in support of the marriage or raising children.
Many couples who go through a divorce can attest to the problems it can bring up when there is a dispute over property and spousal maintenance. Some of these disputes involve anger over the separation or marital misconduct. An agreement that is entered into before there were any disputes can provide for an easier separation in the event the couple decides to get a divorce.
Enforcing Prenuptial Agreements
A prenuptial agreement can only go into effect if it is enforceable, or valid. Just because one spouse shows a signed document does not necessarily mean that whatever the document says will be enforced. Generally, for a prenuptial agreement to be enforceable, it should include:
- The opportunity for each spouse to consult with an attorney before signing the agreement;
- The contract was entered into voluntarily;
- The agreement provides a full disclosure of each party's financial assets and resources;
- The agreement is not unconscionable; and
- The agreement is not illegal.
The opportunity for each spouse to consult with a lawyer is intended to provide time and independent advice on the agreement. This ensures each spouse understands their rights and what they may be giving up by entering into the contract. Voluntarily entering into the contract requires that a spouse did not sign the agreement under threat, duress, or lack of mental capacity.
An enforceable agreement also requires a disclosure of the assets, debts, and value for each party. For example, if one party did not tell the potential spouse that they had millions of dollars in savings and the spouse entered into a prenup, that prenup may not be valid because the spouse did not have the material facts available when making a decision about the prenup.
An agreement must not be unconscionable, which is a way of saying whether it is fair under the circumstances. This can be tricky to predict but it generally involves a big difference in bargaining power. For example, if a prenuptial agreement left one spouse with everything and the other with nothing, the court may be hesitant to enforce such an unfair bargain.
Finally, an agreement cannot be enforced if it provides for illegal actions or restrictions. For example, a prenuptial agreement generally cannot provide that a parent will not have to pay child support because child support is a legal obligation for the parent and cannot be bargained away in a prenuptial agreement.
Challenging Prenuptial Agreements
At the time of a divorce, one spouse may feel like the prenuptial agreement they entered into is no longer fair. However, the courts will generally enforce a prenuptial agreement that meets the above requirements, including giving a full accounting, a chance to seek counsel to review the agreement, and reasonable terms. However, if there is a problem with the enforceability of the agreement, a spouse may be able to challenge the prenup. Grounds for challenging a prenup include:
- Agreement was never signed,
- There was no opportunity to get an independent review,
- The other spouse failed to disclose material information about assets, income, and property,
- The agreement is unconscionable,
- The agreement contains illegal or unenforceable terms, or
- The party was coerced into signing the document.
Prenuptial and Postnuptial Agreement Attorney in Missouri
If you are considering a prenuptial agreement, want to modify a postnuptial agreement, or have questions about how an agreement will impact your divorce, contact the Joshua Wilson Law Firm in Raymore today. The Joshua Wilson Law Firm will advise you of your options and take action to protect you, your assets, and provide for your family. Contacts us online or by calling (816) 331-9968.