I'm not a girlie-girl but weddings can sure be fun, can't they? I love a bridal party in cowgirl boots. Before you tie the knot, consider whether a prenup is right for you.
Matrimonial agreements are always encouraged, especially with divorces. When people enter into an agreement as opposed to getting an order from a judge, it is more likely that they will comply with the agreement. Any type of matrimonial agreement is a contract and can be enforced by court action just like any other civil contract. Matrimonial agreements may discuss the division of property, child support, spousal maintenance, and relocation.
The types of matrimonial agreements are as follows:
1. Pre-nuptial Agreement (aka Antenuptial Agreement or Premarital Agreement): Contract that may be entered by both parties to a marriage or civil union.
2. Post-nuptial Agreements: Contract that may be entered after a marriage or civil union.
3. Separation Agreements: Agreement to live separate and apart under certain conditions. After one-year the parties can use the fact they lived separate and apart as a basis for a divorce. (“Conversion Divorce”).
4. Stipulations of Settlement (aka Settlement Agreement): Agreement made pursuant to a divorce action.
Here are a few things to keep in mind when entering into a matrimonial agreement:
1. Matrimonial agreements must be signed by the parties and acknowledged by a notary public.
2. Both parties to an agreement should be represented by separate counsel.
3. There will be a burden to show the court that the document is a true and accurate copy of the agreement. See Wong v. Wong, 2011 WL 2637684 at *1 (discussing an invalid prenuptial agreement). Therefore, parties should consider putting the agreement in a place safe from an Act of God (e.g., fire, flood).
4. The language in the agreement should be clear and unambiguous.
5. The agreeement should be reasonable and fair.
Matrimonial agreements can be held to be invalid like any other contract. Typical defenses include duress, fraud, and illegality. For example, prenuptial agreements should be signed before the wedding invitations are sent out (or preferably 3-6 mos. prior to the wedding). When entering into a matrimonial agreement, neither party can make a material misrepresentation to the other person (e.g., hiding assets). Many proponents of prenuptial agreements (like myself) believe it is a healthy exercise for a couple to get financially naked with one another before they walk down the isle.
As an aside, I am available to mediate any type of matrimonial agreement (including virtual mediation via Skype). If I mediate a prenuptial agreement, couples are still advised to seek the review of separate attorneys before entering into the final agreement.