Marital (prenuptial) agreements
Contracts which are written up between people who intend to get married, used to be called “prenuptial agreements”. They can also be done after the wedding, in which case it would be called a “postnuptial agreement”. Since there is little difference between the two, many lawyers refer to them now as simply “marital agreements”.
There are several points which are necessary in order to have a marital agreement that is airtight. If it isn’t airtight, you might as well not have an agreement in the first place, because all you will do is add one more issue to be fought over in a divorce.
It should be done safely before the wedding. People often want to put together a prenuptial agreement in the last few weeks before the wedding. That is too late. If either party decides later that they want out of the agreement, they can argue to the court that they felt pressured because it was so close to the wedding. If it is already too close, it is better to wait and have a postnuptial agreement instead.
There must be full disclosure. In order for the agreement to stand up, there must have been full disclosure by each of the parties of their assets, debts, income, expenses, and any other relevant financial circumstances. It is best to do this in writing.
Each party must be represented. Couples often want one lawyer to draft the agreement for both of them. It doesn’t work that way. Each of the parties should have a separate lawyer. One lawyer can draft up the initial version, and then the two lawyers, working with their clients, can negotiate the fine details.
It must be objectively fair. It doesn’t have to be exactly what a divorce judge would have done, but if it is so far off normal that it appears unfair to one party or the other, a judge could throw it out.
It isn’t just about divorce. A good marital agreement covers what happens if the marriage is terminated, but it should also cover what happens when either spouse has died, and what happens if either of them becomes disabled. And in order to assure that it does not end up as just another useless piece of paper, it should take into account how the parties will be combining (or not combining) their finances during the marriage.
If you are going to have a prenupt, do it right, or don’t do it at all!