Agreements

Steve Scott

Attorney at Law

Serving Landlords, Individuals
and Small Businesses

Vanessa Reynolds

Legal Assistant

Agreements

Pragmatic souls mindful of rising divorce rates, second marriages, dual incomes and shifting judicial interpretations of appropriate property division upon divorce may wish to consider an antenuptial agreement or a postnuptial agreement. Scott Law Firm prepares such agreements. Fees are based on the time required to complete the work.

Antenuptial agreements are pre-marriage contracts between prospective spouses. Postnuptial agreements are post-marriage contracts between already married spouses. Both types of agreements commonly deal with spousal rights upon the death of one spouse or upon the dissolution of the marriage.

To avoid judicial invalidation of an antenuptial or postnuptial agreement, the following requirements must be observed:

	There must be full disclosure between the parties of all assets and income of both.
	The agreement must be entered into by both parties freely and voluntarily.
	The parties must know and understand all of the terms of the agreement.
	The agreement must be fair to both parties.
	There must be fair consideration in exchange for waiver of rights of inheritance or other statutory rights of a surviving spouse. (However, consideration does not have to be precisely equal; commonly, it is simply mutual release of claims to the property of the other.)
	The agreement must be entered into in good faith and without fraud or coercion.
	Both parties should have independent legal counsel and adequate time to review the agreement before it is signed.

Following are some matters commonly addressed in antenuptial and postnuptial agreements:

	One or both parties may waive the right to receive property from the estate of a pre-deceased spouse, except as otherwise provided in the agreement or by the parties’ wills.
	The parties can agree to waive the right to elect to take against the will of a deceased spouse.
	The parties can specify what assets owned by each will be deemed separate property in the event of a dissolution and what property will be considered marital and therefore subject to division by the dissolution court.
	One or both spouses can waive the right to seek maintenance from the other in a dissolution.
	One or both spouses can waive the right to claim an interest in pension benefits.

All antenuptial and postnuptial agreements must be in writing to be valid. However, if a written agreement is lost, it may be possible to establish its existence and provisions by other evidence.

There is some uncertainty about the enforceability of postnuptial agreements relating to issues in a prospective dissolution of marriage, unless the agreement is signed in connection with an impending separation or dissolution.

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