Last time, we began looking at the increasing popularity and potential uses for postnuptial agreements. As we noted, marital agreements–those negotiated once a couple has contracted a marriage–can be a useful tool for protecting assets in the event of divorce or upon death. In negotiating any marital agreement, though, working with an experienced attorney is imperative.
Marital agreements–sometimes called postnuptial agreements– involve the rights and duties of both parties, and it is important to have an advocate in the negotiation process to ensure that one’s interests are well represented in the agreement. There are several things, in particular, one needs to be aware of when entering into a martial agreement.
First, it is important to ensure that the marital agreement is not fundamentally unfair to one party. If the terms of the agreement are overly favorable to one party, the agreement is less likely to be enforced in court, rendering it useless. One common way lack of fairness can come into play is when one party fails to reveal the existence of assets to the other party so that the agreement does not reflect those assets. Full disclosure of assets is critical to forming a fair agreement.
Voluntariness is another important factor in the enforceability of marital agreements. When one party puts undue pressure on another to sign an agreement, or when circumstances lead a party to believe he or she has little choice in signing the agreement, that can be a problem.
In our next post, we’ll continue this discussion, looking at the importance of proper execution of marital agreements.