Divorces can be a very messy process. Without a negotiated agreement between the spouses, the court will need to find an equitable way to split up their property (including retirement benefits), and the more financially advantaged party may have a lifelong obligation to support their ex-spouse. To make this process more predictable, many spouses agree in advance on how to deal with property and support if they are divorced. These agreements are called prenuptial or antenuptial agreements if they are signed before marriage, or postnuptial agreements if they are signed after marriage. While the validity and enforceability of prenuptial agreements varies from state to state, there are several key considerations that apply in any US jurisdiction.
| We offer family law consultations to clients in the District of Columbia, Maryland, Virginia, and New York. Contact us here to schedule a consultation. |
Prenup or Postnup?
Most jurisdictions do not draw a significant legal distinction between prenuptial and postnuptial agreements. However, there is a huge practical difference between the two. When negotiating a prenuptial agreement, the parties are not yet married, and their alternative to a negotiated agreement is to either get married without one, or go their separate ways if they cannot agree. On the other hand, when negotiating a postnuptial agreement, the alternative to a negotiated agreement is a separation and divorce process where the financially weaker spouse will be able to claim alimony and property division. All other things being equal, the financially stronger spouse will usually have a much stronger negotiating position before marriage, but as time passes following the marriage, the financially weaker spouse will have a stronger negotiating position.
What Can Be Agreed?
In most jurisdictions, a prenuptial agreement can permanently settle issues of alimony and property division if it is properly drafted. However, in some jurisdictions like Maryland, an alimony agreement may be modified by a court unless it is expressly described as being non-modifiable.
A prenuptial agreement has a very limited impact on child custody and support. Since the child’s best interest is always considered to be paramount, courts may modify any agreement between parents regarding the custody and support of their children. Many states prohibit prenuptial agreements that adversely affect child support obligations.
A prenuptial agreement also cannot eliminate sponsor obligations under an Affidavit of Support for a green card, which are a matter of federal immigration law.
Disclosure
In general, each party to a prenuptial agreement must ensure that the other party is fully aware of their financial situation at the time the agreement is signed. Some jurisdictions, like the District of Columbia and Virginia, allow a voluntary and express written waiver of disclosure in lieu of actual disclosure or knowledge. Other jurisdictions, such as Maryland, do not. Even in a jurisdiction where a waiver is allowed, fraud may be argued as a defense to the formation of the contract (and a cause of action to claim damages), so each party must be careful not to mislead the other party about their financial situation.
Voluntary Execution
Like other types of contracts, prenuptial agreements may be invalid if they were not executed voluntarily.
Duress or coercion may be raised as a defense if one party was “forced” to sign the agreement by the other. The timing of the agreement may be important in preventing such an argument in the future. Agreements entered into shortly before marriage are often reviewed more carefully for signs of duress or coercion.
Mental capacity (incompetence) may also be raised as a means of invalidating the agreement. For example, if a party was under the influence of drugs or alcohol when they signed the agreement, this may invalidate the agreement entirely.
The parties to a prenuptial agreement are usually advised to have separate attorneys of their own choosing, so that there is no question that they were properly informed of the terms of the agreement and consented voluntarily to them. In some jurisdictions, such as California, there are special procedures that apply in the case of parties who are not represented by attorneys, and failure to follow these procedures may invalidate the entire agreement.
Even in jurisdictions that do not require it, it is a good idea to have any prenuptial agreement notarized to avoid any future dispute over the authenticity of the spouses’ signatures.
Fairness and Conscionability
Each jurisdiction has its own standards on the requisite fairness of prenuptial agreements. In most jurisdictions, an extremely unfair agreement may be invalidated by a court even if there was full disclosure and voluntary execution by both parties. Some jurisdictions go farther, and require the agreement as a whole to be fair.
Our Fees
We draft and negotiate prenuptial and postnuptial agreements for clients in New York, Maryland, and the District of Columbia. Our fees are typically in the range of $750 to $2,500 depending upon the desired complexity of the agreement, and the length and extent of the negotiations required.