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Prenuptial (or Postnuptial) Agreements
Our attorneys have been successful in getting prenuptial agreements both upheld, and set aside, on behalf of our clients.
A prenuptial agreement (also known as a premarital or ante-nuptial agreement) remains enforceable no matter how long ago or where it was finalized, as long as it was lawfully executed. Postnuptial agreements, which are agreements finalized after a marriage, follow the same principle.
Whether an agreement is lawful is based on a number of factors, so each agreement is taken on a case-by-case basis. Generally, though, an agreement is valid if:
- Each spouse either had independent legal counsel, or they had an adequate opportunity to obtain independent legal counsel but voluntarily declined such representation.
- Each party provided ample disclosure of all personal assets and liabilities, or waived the right to receive disclosures in addition to those provided.
- The agreement does not negatively impact either spouse's claim to child support.
- The agreement cannot be perceived as being so unfair and one-sided that it is unconscionable, which means it "shocks the conscience."
- Enforcement of the alimony provisions would result in one party qualifying for welfare benefits.
Typically, a prenuptial or postnuptial agreement will not be enforced, if either party can prove:
- They did not sign the agreement voluntarily.
- The disclosure of assets and liabilities provided by the other party was substantially incomplete, and; they did not voluntarily waive their right to receive additional disclosure beyond what was provided, and; they didn't know, nor could they have reasonably known, about the other party's assets or liabilities.
- The agreement is so one-sided that it Is considered to be unconscionable.
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