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What is a Prenuptial Agreement?

Whether to enter into a prenuptial agreement, also known as an antenuptial agreement, is an important decision for two individuals who are getting married. A prenuptial agreement is a contract which dictates how marital assets will be divided, and can even set out alimony amounts and issues regarding children. If two individuals choose to enter into an agreement, it is important to understand the requirements and possible challenges.

The first thing that is important to understand is the legal function of a prenuptial agreement. When two spouses get a divorce, property division is dictated by state law. A prenuptial agreement, in effect, replaces the method of division which would take place under state law by way of a consensual contract. The theory is that if the two individuals choose to surpass the state’s method of asset division should they get a divorce, they are free to enter a contract which outlines their wishes.

An additional consideration is the scope of a prenuptial agreement. Valid provisions include rights to property, debt assignments, disposition of specific property interests, individual rights in businesses or other joint ventures, and entitlements to life insurance policies. Although child care, support, and educational matters may be laid out in a prenuptial agreement, the judge will still consider the best interests of the child before enforcing those provisions of the agreement.

A court will uphold a prenuptial agreement if it is found to meet the requirements, and there is no successful challenge against it. Most importantly, a prenuptial must be in writing, signed by both parties before a notary public, and be held to be entered into voluntarily. Either spouse, at the time of divorce, can argue that the prenuptial agreement is invalid for multiple reasons.

If the written formalities of the agreement are met, then there are other arguments to undermine the validity of the agreement. For one, a spouse can argue that they entered into the agreement under duress and involuntarily. Another claim can be that the other spouse was deceitful and hid many of the assets before marriage. The court will look at several factors to decide these types of challenges, such as the age of the individuals when they entered the agreement, whether the spouses each had their own attorney, and other circumstances that could demonstrate the state of mind of the parties at the time of the agreement.

The team of experienced lawyers at Larry McCord and Associates, LLC assists clients in all aspects of divorce, including the formation of prenuptial agreements and any disputes during a divorce involving an agreement. Please contact Larry McCord and Associates, LLC at (631) 643-3084 to learn more about our services and approach to family law.

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