How a Prenuptial or Postnuptial Agreement Affects Divorce

 Posted on February 01, 2016 in Divorce

If you are seeking a divorce and have a prenuptial or postnuptial agreement with your spouse, many issues that are common in a divorce, such as division of property, may be a moot point. This is because prenuptial and postnuptial agreements are designed to settle certain issues in divorce before they even arise. The following considers how a prenuptial or postnuptial agreement affects a divorce:

The Difference Between a Prenuptial and Postnuptial Agreement

A prenuptial agreement, also known as a premarital agreement, and a postnuptial agreement are not the same thing. A prenuptial agreement is a legally binding contract that is entered into by both parties in a marriage before the marriage actually occurs; a postnuptial agreement is a legally binding contract that is entered into both parties in a marriage after the parties are already married. Both can address the exact same issues, and both may be enforceable if a divorce occurs.

Items Addressed in Prenuptial and Postnuptial Agreements

Prenuptial and postnuptial agreements are designed to address financial issues in a divorce. Typically, the average prenuptial or postnuptial agreement will consider:

• Division of property and assets if marriage is dissolved;
• Spousal support/alimony/maintenance payments if marriage is dissolved;
• Protection of property;
• Protection from debts; and
• Financial obligations of both parties (who will work, who will pay bills, how credit cards will be handled, etc.).

This means that if you get a divorced and have a pre/postnuptial agreement that addresses the issues above, the issues may be resolved per the terms of the agreement.

What a Pre or Postnuptial Agreement Will Not Address

Even if you have a pre or postnuptial agreement, you will not be able to walk away from a divorce without any legal issues in certain cases. For example, if you have children, a pre or postnuptial agreement will not address with whom the child will live or amount of child support to be paid – these things must be decided either by agreement of the parties or by a court. Prenuptial agreements cannot be used to make determinations about nonfinancial matters at all, which can extend to who gets custody of pets, whether or not you have to change your last name, etc.

Can a Prenuptial or Postnuptial Agreement Be Changed at a Later Date?

Prenuptial and postnuptial agreements can be changed. What’s more, while a prenuptial agreement is a contract, it is not law; there are multiple things that may render a prenuptial or postnuptial agreement void. According to an article in Forbes Magazine, these include:

• The agreement is fraudulent;
• The agreement was signed under duress or was coerced;
• The agreement was not properly drafted;
• The agreement was signed without legal representation; or
• The agreement has unfair provisions.

Hire a Divorce Attorney Today

Even if you have a prenuptial or postnuptial agreement, a judge may overrule the agreement in some cases. To learn more about your rights during a divorce and how to obtain the most equitable outcome possible, contact the experienced Naperville divorce attorneys at Fay, Farrow & Associates, P.C. today. Call 630-961-0060 to schedule your free case consultation.