PRENUPTUAL AGREEMENTS AND POSTNUPTUAL AGREEMENTS
No-fault divorce has permanently altered the marriage-relationship—and
not always for the better. Before the advent of no-fault divorce, most
states had limitations on when divorce was permissible—typically
severe misconduct was required to be shown. The person seeking a divorce
would have to prove that there is a serious reason for divorce, such as
infidelity, severe mental disability, and the like.
No-fault divorce, by definition, removed any such requirement. Even in
states where there is both a no-fault basis for divorce as well as fault
bases (such as Kansas), there is no advantage to alleging fault and, therefore,
judges don’t favor such arguments.
Removing the burden of proving fault in order to obtain a divorce has incentivized
divorce, quite predictably. The rules that judges apply to determine issues
like division of assets and debts and spousal support (alimony) are generally
fixed, although judges do have broad discretion to deviate from them.
Most are surprised to learn that these rules have little or nothing to
do with justice, personal conduct, or fault.
The best way to take your marriage (and potential divorce) out of the realm
of these rules is for you and your spouse to create your own rules that
the judge must apply in the event you divorce. That is the purpose of
a prenuptual agreement (a/k/a “antenuptual agreement”). Whereas
once such agreements were disfavored in law and strictly scrutinized,
now they are as enforceable as more ordinary contracts. An experienced
family law lawyer can help you work through and create such an agreement.
Prenuputal agreements can govern anything from responsibilities and financial concerns
during the marriage to how the parties will handle their financial affairs in
the event of a divorce. They can be used to ensure that certain property
remains non-marital, such as premarital property. The parties can remove
the incentives divorce that are inherent in the law by adding fault concepts
back into the marriage, such as financial ramifications in the event of
certain types of marital misconduct.
Sometimes people forego prenuptual agreements but—typically after
some marital disputes—they decide on a postnuptual agreement: think
of it as a prenuptual agreement after you are married. The typical scenario
is that one partner engages in some misconduct that causes the other to
want to end the marriage. In order to incentivize that partner to remain
in the marriage, often certain concessions are necessary. Those agreements
must be memorialized in a post-nuptual agreement or they will not have
effect in the event of an eventual divorce.
Both types of marital agreements are highly technical; one misstep in drafting
the agreement could cause a judge to throw out the agreement or to severely
limit its effect. If you need either a prenuptual agreement or a postnuptual
agreement, contact a
family law attorney at the law firm of
Martin & Wallentine to see how we may help.