Why a post-nuptial, pre-nuptial, separation agreement or divorce stipulation?
No one likes to enter into a marriage anticipating its failure, but the statistics don’t lie. A Center for Disease Control Study reveals that over 40 percent of first time marriages result in divorce. The numbers increase with subsequent unions – over 60 percent of second marriages and over 70 percent of third marriages do not survive. If you end up among those who are facing divorce, you will also face the prospect of having a judge make decisions that will greatly impact you, your children, your assets and how you live your life moving forward. That is, unless you and your spouse can agree to a solution that will take the matter out of the court’s hands.
Marital Agreements in General
A marriage is in actuality quite simple to enter into, yet by so doing you are creating what can become a complex set of rights and responsibilities. This clearly becomes even more complicated with the addition of children to the family equation. Upon dissolution, the court seeks first to protect the rights of the children and then divide assets and liabilities in an equitable fashion according to pre-determined notions and standards without regard to your personal desires. But if you and your spouse formulate a mutually workable solution with the assistance of your divorce lawyers, you may be able to minimize the judge’s impact on your life.
A pre-nuptial agreement is one you and your future spouse enter in before you are legally married. The basics of establishing a valid and enforceable pre-nup involves consideration of these issues:
• Define and identify separate property
• Define and identify marital property
• Identifying pre-marriage debt
• Establishing support for children of a prior marriage
• Establishing maintenance and support both during marriage and in the event of a divorce
A post-nuptial agreement is very much like a pre-nuptial and should address the same issues, but it is entered in after you are married rather than before.
A separation agreement can be a useful tool in providing a married couple some breathing room and time to work out the problems their marriage may be facing. You and your spouse sign such an agreement without involvement of the court, and it governs the terms and conditions whereby you will live separately yet remain married. Often, couples report that once a divorce petition is filed and the case is on calendar, the parties focus on preparation for the upcoming court date, treat the divorce as inevitable and no longer work at reconciliation. A separation agreement may be limited to issues regarding the time of separation, or it may go further and establish a framework for what will occur should divorce become inevitable.
This agreement is a way to remove the court, as much as possible, from controlling the terms and conditions of your break up. By considering and addressing all the issues that are within the jurisdiction of the court, and crafting a thoughtful agreement that balances the interests of both parties, you can provide the court with confidence the terms will be followed, and your case will not end up back in court for review. The result can be a quicker, less stressful and less expensive solution
The Validity of any Agreement
Although these marital agreements are specifically designed to address the legal rights and responsibilities of a marital dissolution, they are essentially contracts and must pass muster as such. Once entered into, either party may deem it necessary to go to court to enforce provisions of the specific agreement. Among the issues to be considered:
• Fraud – Issues of fraud typically arise in failing to disclose assets or the true value of assets. This can be either in a pre-nuptial agreement or later agreement concerning property acquired during the marriage. In either case, both parties have a duty to fully disclose all material facts.
• Mutual mistake – Mistakes can occur, and if both parties simply missed listing a forgotten asset this can be corrected by amending the agreement.
• Coercion/duress – Excessive pressure by one spouse to have the other sign an agreement may provide sufficient concern for the court to question the validity of the agreement.
• Unfair/inequitable – Fundamentally, contracts must be fair and bargained for by parties on relatively equal footing. In practice, this may not occur all that often. One party typically has more sophistication in business matters than the other, especially in a marriage where one spouse followed a career path, and the other maintained the household. Where courts may step in, however, is where the weaker positioned spouse seemingly agrees to what is essentially counter to their best interests.
• Separate attorneys – Many couples favor the concept of forming mutual agreements as a means to save money, but it’s usually a mistake to try and cut legal costs by sharing one attorney. Where the marriage is of short duration and one that has few assets, it can work, but avoiding having separate attorneys invites the court to scrutinize more closely the agreement and how it was arrived at.
Contact a Long Island Divorce Lawyer for Legal Advice
We understand the emotional turmoil you experience during divorce, but important legal rights are involved as well as you prepare for the next stage of your life. Protect your rights, understand your options and make decisions in your best interests. Our name says it all – www.longislanddivorcelawyers.com. Contact us today for a risk free consultation.