Many couples may want to consider preparing a pre- or post-nuptial agreement to avoid uncertainty as to who receives what should the couple divorce.
A pre-nuptial agreement is one that is formed before the marriage while a post-nuptial agreement is formed after the marriage. These agreements can be used to clarify a number of property distributions in the event of a divorce. One such issue is what constitutes marital property as opposed to separate property. Separate property is property that was acquired by one spouse prior to the marriage or was inherited by one spouse. Marital property is property that was acquired during the marriage and belongs to both spouses. Clarifying in a post or pre-nuptial agreement what is considered marital or separate property can help avoid conflicts and confusion when a divorce occurs. In addition, a pre or post-nuptial agreement can delineate the amount of debt that each spouse brought into the marriage and can ensure that debt is not intermingled.
Pre and post nuptial agreements require that each spouse fully disclose the assets they possess to the other spouse. These agreements must be in writing, and each spouse should be given ample time to consider the terms of the agreement. Furthermore, the sophistication of the spouses may be considered along with the relative bargaining power of the spouses. In addition, it is wise that each spouse consults their own attorney in negotiating the agreement. These and other factors are considered by courts in deciding whether to enforce post or prenuptial agreements.
Overall, pre- and post-nuptial agreements are useful devices for spouses who wish to predetermine how their assets will be divided in the event of divorce. While such agreements may be an uncomfortable topic of discussion, if the agreements are prepared properly and are enforceable, they can resolve issues of distribution of marital property early on.