Pre-Nuptial and Post-Nuptial Agreements

When most people get married, the last thing on their mind is the possibility of divorce.  I rarely have heard of someone walking down the aisle and wondering “What will happen to all my property and money if this doesn’t work out?”  Divorce, however, is a highly probable reality in American life.  In my experience, a little advance planning would have been a time and money-saver for all of my clients. A pre-nuptial or post-nuptial agreement can help someone protect his or her long-term interests before saying “I do.”

What is a Pre-Nuptial Agreement?

A pre-nuptial agreement, often referred to by attorneys as a pre-nup, is a legal agreement that sets out how property will be divided in the event of divorce.  It also allows a couple to make other provisions that could prevent issues in the future, such as alimony disputes.  Before walking down the aisle, consider if this type of agreement could be a benefit to you.  Many people assume they do not need a pre-nuptial agreement because they are not exceptionally wealthy or have not yet accumulated valuable assets.  You don’t have to be a millionaire to benefit from a prenup. 

How Can a Pre-Nup Help Me?

A pre-nup can help you in the following ways:

  • It can protect the business you own or are operating prior to the marriage.
  • It can outline the financial responsibilities of each spouse during the marriage.
  • The prenup can specify what property will stay separate and what will become marital property.
  • The terms can protect the inheritance rights of your children and grandchildren from a previous relationship.
  • You can limit the amount of alimony in the event of a divorce.
  • If you are receiving alimony from a prior marriage that will end upon remarriage, you can arrange to receive comparable alimony if the new marriage ends.
  • For people who stand to inherit wealth but have not yet done so, a pre-nuptial agreement could help protect those assets from being co-mingled and becoming marital property.

A pre-nuptial agreement is not an excuse to force your partner into unreasonable behavior.  For instance, courts will not uphold provisions in pre-nuptial agreements that require a spouse to maintain a certain weight (although sometimes a client will try to insist on something equally unreasonable).  Judges also look at the circumstances under which a pre-nup was signed.  It is important that both parties are represented by counsel, and that neither is pressured into signing.  If it appears one of the parties was under “duress”, the court may invalidate the pre-nup.  For instance, if the wedding has been planned, paid for and is fast approaching, and one party suddenly insists on a pre-nuptial agreement, the court could find that the other party was under duress to sign it.

What is a Post-Nuptial Agreement?

Tennessee courts also recognize post-nuptial agreements if they are drafted correctly and the parties agree to give up rights to what the law calls “the marital share”, which is the assets each party would be entitled to receive by law when the other dies.  It is often more difficult to convince a partner to alter his or her legal rights AFTER marriage, which makes a prenuptial agreement the preferred method of marriage planning for my clients.

Most importantly, talk to your attorney and know what a pre-nuptial or post-nuptial agreement can do for you BEFORE you make the decision to spend the rest of your life with someone.  A properly drafted agreement can help resolve issues in the future and allow you to embark on your new married life with confidence and security.

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