An Overview on Prenuptial and Postnuptial Agreements
Prenuptial Agreements. Postnuptial Agreements. For many, the words alone are scary, but with the right amount of planning and legal advice, the concepts are not.
So, what are these agreements … and what are they not?
- Pre-Nup: A prenuptial agreement is a contract entered into by a couple in anticipation of an upcoming marriage.
- Post-Nup: A postnuptial agreement is a substantially similar contract, but one that is entered after the couple is already married.
These agreements are private, but done correctly, are as binding as any other contract.
They are not, however, meant to determine all future events. For example, issues of child custody or child support generally need to be determined in accordance with the child’s best interests at the time of divorce and are not included in such agreements. Many couples do find it helpful to include certain provisions regarding child rearing to establish a baseline of their goals, even if the clause is primarily aspirational and may not ultimately be binding upon them.
So, why enter into such an agreement?
The most obvious answer is to have a plan that is determined by the couple, the actual people who will be affected, and not determined by a third-party judge or possibly even a jury.
For most, the main purpose of a prenuptial or postnuptial agreement is financial. One financial term to negotiate, for example, is alimony. Couples can discuss when alimony would apply and when it would not, and, if alimony does apply, whether there would be any limits or caveats. This negotiation and determination at the front end can help with other decisions—such as analyzing the pros and cons of staying home with a child.
Another term to negotiate is the division of assets. Each state has its own laws, but a prenuptial or postnuptial agreement allows a couple to decide what sort of division and plan works best for them (so long as it’s not contrary to public policy).
- In Georgia, the rule regarding division of marital property is called “equitable division.” Equitable means fair and not necessarily equal. For many, the idea of fairness is 50/50, but not to everyone. For some people, the idea of what is fair may be tied to other factors—such as the length of time of the marriage, the number of children, whether adultery occurs, any separate property owned, employability, and many other factors.
- These issues can be negotiated at the front end to create certainty and help the couple understand that they are aligned on the plan, and again, what is at stake if they divorce.
If you are curious as to whether a prenuptial or a postnuptial agreement may be right for you, the attorneys at Hedgepeth Heredia, LLC have extensive experience in drafting enforceable documents and litigating their enforceability or, in certain circumstances, their non-enforceability, and we would be happy to schedule an in-person consultation with you.
You can reach attorney Jessica Reece Fagan at jfagan@hhfamilylaw.com.
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