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There are two contracts you can enter to protect your assets in case of a divorce – prenuptial and postnuptial agreements.
As the names suggest, a prenuptial agreement is one you enter into before your marriage, whereas a postnuptial agreement is one you enter into after your marriage. Other than that, each agreement functions the same way.
If you didn’t get a prenuptial agreement, it’s a good idea to get a postnuptial agreement right away. It will help you protect property you had before the marriage and ensure that you don’t end up responsible for any debt your spouse had if you two later divorce.
Whether you’d like to set up a postnuptial agreement or you have a postnuptial agreement and you’re now going through a divorce, it’s important to have an experienced divorce attorney to guide you. Here’s why, and how we can help you with the process.
Setting Up a Postnuptial Agreement
If your postnuptial agreement isn’t set up properly, then your spouse could challenge it and have it thrown out during the divorce process. There are several potential issues that can lead to a postnuptial agreement that the court doesn’t honor.
Postnuptial Agreements Must Be Fair
A postnuptial agreement needs to treat both parties fairly. For example, a court is highly unlikely to honor a postnuptial agreement that leaves one party spouse with no property or assets and the other with everything. For this reason, it’s always a good idea for both parties to have separate attorneys. This will ensure that each of you have an attorney looking out for your interests.
While you and your spouse don’t need to have separate attorneys to set up a postnuptial agreement, it means the court is going to scrutinize the agreement more. In turn, it’s more likely the court throws out the agreement.
Fraud Can Terminate a Postnuptial Agreement
If there was any fraud involved when the postnuptial agreement was set up, a court is unlikely to honor it. The most common types of fraud relating to postnuptial agreements are failing to disclose or hiding assets.
We can help you go over your property and other assets to ensure that you don’t miss anything in your postnuptial agreement.
While putting your signature on a postnuptial agreement may seem simple, there are rules for this, and failure to follow those rules could result in an invalid agreement. This is another reason why you and your spouse should each have attorneys who will ensure that the agreement is signed correctly. We can guide you through the signature process to avoid any potential issues.
Protecting Your Property and Assets
Your own property typically stays yours after a marriage, provided you don’t allow it to become joint property. A postnuptial agreement provides an additional layer of protection for that separate property, but the same rules about keeping it separate still apply.
Let’s take a look at some common situations to see how this will work:
You had $30,000 saved before you were married. The court would consider this your separate property. Specifying that it belongs to you in a postnuptial agreement can ensure that you don’t lose any of your money in a divorce. However, if you deposited the money into a joint bank account during your marriage, then the court will consider it marital property.
You had a house in your name that you bought prior to your marriage. This is your separate property, and a postnuptial agreement can clarify this fact. Still, you must continue to keep the title in your name to avoid it being seen as marital property.
When we set up your postnuptial agreement, we can also advise you on how to handle your property so a court doesn’t decide its marital property in the case of a divorce.
Going Through the Divorce Process with a Postnuptial Agreement
Prenuptial and postnuptial agreements are useful tools to ensure that your property stays in your possession after a divorce, and to clarify the terms of a divorce instead of leaving that entirely up to the court.
You must keep in mind that simply having a postnuptial agreement isn’t enough. The court will examine the circumstances of your marriage and the content of the postnuptial agreement, and it isn’t legally required to honor that agreement. The best thing you can do for yourself when going through a divorce is hiring an attorney to help.
We will represent you and explain your postnuptial agreement to the court. With our years of experience handling these situations, we’ll give you the best chance of having your postnuptial agreement honored so that you keep what’s yours and have an equitable divorce.
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