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Prenups and high-asset divorce

On Behalf of | Oct 27, 2022 | Divorce |

Prenuptial agreements are a way for couples to lay out the terms of their divorce before they get married. It’s most often used for couples who have significant assets, like money and property, that one or both partners want to protect from being divided up in the event of a divorce. The prenup can include provisions about how these assets are distributed in the event of death, separation, or divorce.

What is a prenup?

prenuptial agreement, or prenup, is a contract signed before marriage in which two people decide how they will divide their assets in the event of divorce. It can cover the division of property, investments, commercial real estate, or credit card debt. Prenups can include more specific things like student loan debt, patents, or valuable coin collections. It must be voluntarily and made knowingly without fraud, misrepresentation, or coercion.

A prenup cannot list responsibilities to be performed during the marriage. For example, a prenuptial agreement cannot list that one spouse will be responsible for housework. It also cannot dictate the religion of any children shared by the couple.

In recent years, courts have allowed rulings on the use of social media during a marriage or after divorce proceedings. For example, a couple may agree not to announce or discuss a divorce on social media.

What makes a prenup valid?

Even though a prenup is drawn up before marriage, it is not valid until the couple is legally married. For example, if two people sign a prenup before getting married and later decide not to go through with the ceremony, this document will not be considered legally binding.

Anything that would motivate a spouse to file for divorce cannot be included in a prenup. For example, if one spouse gets the other’s home in a divorce, that provision would not be enforceable.

A prenuptial agreement is only valid during the time of marriage when it is signed, and it is not valid if there are any proven indications of fraud in the execution. Anything that violates public policy cannot be included in the prenup.

What if I don’t have a prenup?

If you get married without putting a prenup in place and later experience significant changes that could result in a high-asset divorce, a postnuptial agreement is a good thing to consider. This is a contract that is similar to a prenup. Although it is written and signed after a couple is already married, it is still just as legally binding.

What does the court consider in contested divorce prenup cases?

If a court determines that one party signing a prenuptial agreement was under duress or misinformed by the other spouse, the court will find it not legally enforceable. Additionally, anything included in the prenup that is illegal or was illegally obtained will make the entire contract invalid.