Prenuptial Agreements, also known as “antenuptial agreements” or “premarital agreements,” are contracts made by the parties prior to and in contemplation of marriage. They are agreements made before marriage, usually to resolve issues of support and property division if the marriage ends in divorce or death by a spouse. Prenuptial agreements are enforceable without consideration and become effective upon marriage.
If, upon divorce, the prenuptial agreement is contested, the court takes into consideration 3 (three) criteria when determining if the agreement is enforceable. First, the court looks to see if the agreement was obtained through fraud, duress or mistake, or through misrepresentation or nondisclosure of material facts. Second, the court looks to see if the terms of the agreement are unconscionable, in other words, is the agreement unfairly tipped in favor of one spouse. Third, The court will look at whether the facts and circumstances changed since the agreement was executed, so as to make its enforcement unfair and unreasonable.
Sometimes couples will execute an agreement after getting married. A Post-nuptial Agreement is an agreement entered into during the marriage and when separation or divorce is non imminent, to define each spouses property rights in the event of death or divorce.
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