Prenuptial and Postnuptial agreements are a type of contract that can be entered into either before or after a marriage which sets forth the rights of each party in the event of a divorce or death of the other party. These contractual agreements fall into two basic categories and are characterized by the time period during which they were executed. When the contract is entered into by prospective spouses, it is termed an antenuptial or premarital or prenuptial (pre-marriage) agreement. When the contract is entered into after the marriage takes place, it is termed a postnuptial agreement.
Practically speaking, there are very few differences between the two types of agreements with respect to their legal efficacy. Although this article uses the term prenuptial agreement or "prenup," most of the discussion applies to postnuptial agreements as well.
Prenups tend to be most popular among three groups:
• People who have children from a previous marriage and want to protect the children's interests.
• People who have been through a messy, hard-fought divorce in the past, and want to make sure that it doesn't happen again.
• People who are entering into a first marriage with significant assets, or with an expectation of a large inheritance. (In these cases it's often the person's parents or family members who push for the prenup.)
A common arrangement is for each spouse to keep the property they bring to the marriage, and to split any property they acquire after the marriage. However, some couples plan to maintain completely separate assets even after they are married. Still other couples set things up so that how their assets are split will depend on how long the marriage lasts.
In Missouri, a prenuptial agreement will only be enforced if it is entered into freely, fairly, and understandingly, with full disclosure, and the agreement is not unconscionable. Conscionability or fairness of the agreement is determined as of the date of the agreement. Therefore, anyone contemplating entering into a prenuptial agreement should think about whether the prenuptial agreement protects their interests in the event of changed circumstances. For example, a party may be employed and able to support him or herself at the time the agreement is entered into, and therefore, may waive any claim they may have to maintenance (commonly called "alimony"). If the agreement was fair at the time it was entered into, it will likely be enforced (so long as it meets the other prongs of the validity test) even if that person is unemployed or disabled at the time the prenuptial agreement is enforced.
There are a few things you can do to make a prenup more likely to hold up in court. First, each spouse should be represented by a different lawyer, so it's clear that each one signed the agreement voluntarily and understood fully what it meant. Second, it's good to sign the agreement well before the wedding. If the agreement is signed just prior to the big day, a spouse might later claim that he or she was pressured into it at the last minute. Third, it is critical that both parties fully and completely disclose all of his or her assets. If the agreement is ever challenged at a later date, one of the factors the court considers is whether the parties disclosed fully and completely all of their financial assets and liabilities. Finally, the agreement should be fair and not one-sided.
A party contemplating a prenuptial or postnuptial agreement should contact an attorney who has experience in drafting these types of agreements. Likewise, if you are going through a divorce in Missouri and want to enforce a prenuptial agreement, of if you want to challenge the validity of a prenuptial agreement, it is important to choose an attorney who is not only knowledgeable, but who will be aggressive in pursuing your rights under the law
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