Premarital and Postmarital Agreements: Planning for the Future with Clarity and Confidence
Premarital agreements are often misunderstood. A prospective spouse may interpret a request for a premarital agreement to mean that their intended partner expects their marriage to fail. While premarital (and postmarital) agreements almost always contract with the possibility of divorce in mind, they are better viewed as a planning mechanism. When used properly, these agreements are not about expecting a marriage to fail but about planning responsibly for the future so that the marriage can start (or continue) on more stable ground.
Marriage can be one of life’s most meaningful commitments. It represents a partnership built on trust, shared goals, and a vision for the future. While most couples enter marriage with optimism and hope, marriage is also an economic partnership. Finances and other legal issues that have a significant impact on couples after they are married are often not considered, or truly discussed in detail, prior to marriage. Premarital agreements facilitate couples having full economic transparency before they get married, and to better understand what all the different ways a marriage legally changes their lives prior to the marriage. When done right, a premarital agreement should be a tool to strengthen the relationship, allowing both parties to enter marriage with a better understanding of what each partner expects from their marriage.
Additionally, postmarital agreements are a tool that many married couples do not know they could utilize. While similar to a premarital agreement, the obvious difference is that these are drafted after the marriage has been finalized. These agreements can be extremely useful to married couples who want to promote transparency and may have specific needs that need to be in writing. Postmarital agreements cannot be done in contemplation of divorce, and are therefore uniquely available to married couples wanting to stay together. They are meant to help married couples stay together.
At Whitsitt Fields, we believe that open and proactive planning is a sign of a strong partnership. Our attorneys help couples draft both premarital and postmarital agreements that protect their client’s interests, promote transparency, and provide peace of mind as they build their lives together.
What Are Premarital Agreements?
A premarital agreement, (previously referred to as “antenuptial” or “prenuptial” contracts) is an agreement between prospective spouses in contemplation of marriage that is effective upon marriage. Premarital agreements can cover a wide array of issues, with the intent of having the couple establish agreements as to how various financial and other matters may be dealt with in the event of death or divorce.
Premarital agreements primarily operate to relinquish, create, or modify rights that would otherwise be given by law to married parties upon marriage, divorce or death:
- How to define, identify and create “marital property”
- How to define, identify and create “separate” or “non-marital” property
- How various types of property and/or debts will be divided if the marriage ends (whether by death or divorce)
- Protection of family assets; inheritance; business interests or professional practices
- Protection of income and assets acquired before or during marriage in case of divorce
- Protecting preexisting assets from the statutory share
- Setting out in advance the economic partnership expectations between future spouses
- Fixing economic rights and obligations between the spouses, including things like contributions to household expenses and taxes
- Reducing, or eliminating, a support obligation if the marriage should end in divorce
The importance of having qualified legal representation to guide you through your objectives when preparing to enter into a premarital agreement cannot be understated. For a premarital agreement to be enforceable, it cannot be involuntary (by coercion, or under duress), or unconscionable, among other things. A well-drafted prenuptial agreement provides both parties with a clear understanding of their financial rights and responsibilities, and is drafted with enforceability in mind.
What Are Postmarital Agreements?
A postmarital agreement is defined as an agreement between spouses who plan to continue their marriage that alters or confirms the legal rights and obligations that would otherwise arise under the law for an already married couple. These types of agreements are often made in an attempt to salvage a marriage, as it is a way of providing financial transparency and making sure the married couple agrees on how future interests will be handled in the event of different kinds of circumstances. Reasons to consider the use of a postmarital agreement can include:
- A significant change in financial circumstances
- The creation or growth of a business
- The receipt of an inheritance
- The desire to clarify financial responsibilities
- Unanticipated financial change during the marriage
- Efforts to rebuild trust following marital challenges
Postmarital agreements can cover most of the same types of issues that a pre-marital agreement can. As a result, postmarital agreements can help couples add structure and transparency to their marriage that may have been missing regarding finances and other issues, which will hopefully strengthen the marriage overall.
The Importance of Proper Legal Guidance
Creating a premarital or postmarital agreement requires careful attention to legal requirements and financial details. Courts may invalidate agreements that were created under unfair conditions or without proper disclosure.
To be enforceable, agreements generally must meet several important criteria:
- Both parties must have the capacity to enter into a contract.
- The contract has to be entered into freely and voluntarily.
- One of the biggest problems with these agreements can be timing. If a premarital agreement is signed only days before the wedding, it calls into question whether it was signed under duress, meaning it may not end up being enforceable.
- The agreement must be in writing and signed by both parties.
- Each party must provide full and honest financial disclosure.
- The terms must be fair and not unconscionable.
Because these agreements can have long-term legal consequences, it is essential that they be drafted with precision and clarity.
At Whitsitt Fields, we guide clients through every step of the process. Our attorneys ensure that financial information is fully disclosed, that the terms of the agreement are clear and balanced, and that the final document meets all legal requirements.
Why Choose Whitsitt Fields
At Whitsitt Fields Family Law Attorneys, we understand that discussing finances and legal consequences before or during marriage can feel delicate. They are topics that are difficult to discuss with your partner, let alone an attorney. But rest assured, our attorneys approach these conversations with professionalism, respect, and a focus on creating solutions that benefit both partners. Our goal will be to understand your objectives, and to make sure you are informed of all of your legal options.
We take the time to understand each client’s goals and concerns, ensuring that agreements are tailored to their specific circumstances. Our team is committed to providing clear legal guidance while fostering a collaborative and constructive process.
Whether you are preparing for marriage or seeking to clarify financial arrangements within an existing marriage, our firm provides the experience and insight needed to create a strong and effective agreement.
A Thoughtful Approach to Protecting Your Future
Premarital and postmarital agreements are not a sign that you or your partner don’t believe your marriage will succeed. They are about planning responsibly for the future, and ensuring that both of you understand each other’s expectations of one another. By establishing clear financial expectations and protections, couples can reduce uncertainty and focus on building a strong and lasting partnership.
At Whitsitt Fields, we are proud to help couples navigate these important decisions with confidence and care. Our team is dedicated to protecting your interests while supporting the stability and security of your relationship.
If you are considering a premarital or postmarital agreement, the attorneys at Whitsitt Fields are here to help. With thoughtful guidance and trusted legal counsel, you can create an agreement that provides clarity, fairness, and peace of mind for the years ahead.