Most people that go through a divorce are surprised at how long and nasty of a process it can turn into. People may rationalize that getting a divorce will be similar to breaking up with their college sweet heart; there will be some tears, but it will be over quickly and the two people will move on. This is certainly not the case. Divorces are tedious legal matters that often require sworn testimony from the parties and result in court orders regarding child support, maintenance, division of assets, custody of the children, a parenting plan, and a separation agreement. To sum it up, people that go through divorces do not want to go through them again.
There is an answer to preventing a messy divorce: have an attorney draft a well-planned and thorough prenuptial agreement. People are often hesitant to sign a prenuptial agreement because it takes some of the romance out of an exciting time for a couple and forces them to think about the worst case scenario for their marriage. However, a couple hours of planning can prevent years of anger, resentment, and scorn.
Should I get a Prenuptial Agreement?
The short answer is yes, it’s always better to be safe than sorry. If you and your spouse are both entering into your first marriage, you are not planning on having any children, and you do not plan on owning any large assets together; it isn’t as vital to get a prenuptial agreement. However, if you plan on having children and/or buying a house together, it is almost imperative that both of you consult an attorney to get a prenuptial agreement.
Another situation wherein you are encouraged to sign prenuptial agreements are if you are entering into your second marriage. When you enter into a new marriage, many of the assets that would automatically go to family members from your first marriage at your death will instead go to your new spouse. This creates another incentive to get a prenuptial agreement if you still want your children from previous marriages to receive a share of your assets and prevent litigation at your death.
I Have a Prenuptial Agreement and am filing for Divorce, are they Final?
Prenuptial agreements are contracts between two parties, and therefore the large amount of contract law applies to them. Any contract must not be “unconscionable” or else the law considers it void ab initio (or void from its inception). This means that the court acts like it was never created at all. To find a prenuptial agreement to be unconscionable, a court looks at a long list of factors including if it is widely unfair to one party over the other. To make sure that a prenuptial agreement is not found to be unconscionable, it is important for each spouse to consult a different attorney to look over the proposed agreement before they are married.
Prenuptial agreements may also found to be void if they are based on fraud or misrepresentation by either party. This would involve a person signing a prenuptial agreement based on fraudulent claims from the other spouse, usually about financial assets. If both parties are not completely honest about their financial situation or fail to disclose all of their assets to the other spouse, a court may find that the agreement was based on misrepresentation.
If you and your spouse are either getting married and want to prevent a costly divorce with a prenuptial agreement, or if you are filing for divorce and want to fight a prenuptial agreement in place; it is important to consult an attorney to advise you through the process. The attorneys at Peter Loyd Weber and Associates are experienced in family law and where it intersects with contract law regarding prenuptial agreements. Call us today for a free a consultation at (720)863-7755.