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- PRE-MARITAL AND POST-MARITAL AGREEMENTS -

When folks marry for a second or subsequent time, they usually wish to protect children, relatives or other beneficiaries from their prior relationships. There is nothing inconsistent with wanting a happy and fulfilling marriage with a new partner while at the same time wanting to protect those children or relatives. How is this accomplished?

We always recommend that a man or woman embarking on a new marriage should have a pre-marital agreement (also called a pre-nuptial agreement). Such an agreement can and should carefully and clearly set out the assets that each has and how those assets are to be distributed upon the death of a spouse or upon some other termination of the marriage such as a divorce or annulment. If a couple has already married and do not have a pre-marital agreement, then we recommend a post-marital agreement. The pre-marital agreement is best because it is entered into before the marriage takes place and thus, the terms and conditions are set out in advance. We don’t have to be concerned about an incapacitated or recalcitrant spouse if that matter is taken care of before the wedding occurs. Nevertheless, a post-marital agreement can also be effective in the event there is no pre-marital agreement. Both, when properly prepared and properly executed, are going to be enforceable. A pre or post marital agreement can and should contain just about any provision that the parties want in regard to how they will conduct their marriage. For example, there can be provisions relating to cost-sharing of food, rental or mortgage payments, utility payments, travel expenses as well as provisions relating to what assets are to be distributed to the heirs or beneficiaries of a spouse when he or she dies or when a marriage is otherwise terminated. In the event of a divorce or annulment, there can be provisions relating to the payment of or the waiver of alimony and attorneys fees. What we want you to keep in mind is that the best way to protect your heirs in the event of a new marriage is to have an agreement that clearly sets out your goals, intentions and plans after your new marriage has commenced.

There are two issues that should be discussed. First, in order for a pre or post marital agreement to be enforceable, it is best if each party attaches as an exhibit to the agreement a complete and up to date statement of his or her assets and income. The reason for this is that since a spouse may be waiving, releasing or relinquishing important rights, it is necessary to know what those rights are that are being waived, released or relinquished. By attaching a copy of a financial statement, the intended spouses prove their awareness of what the other person’s assets and income are. The second issue is also very important. Both parties to a pre or post nuptial agreement should have their own separate attorneys. One attorney should not represent both parties to the agreement. The reason is that since each party is perhaps waving, releasing or relinquishing rights in the assets and income of the other, it is important that each party receive separate legal advice. we do realize that frequently folks feel that they have such a simple situation that they don’t wish to have two separate attorneys. We don’t blame them. Nevertheless, one attorney should not represent both parties. Therefore, if one does not wish to have an attorney, the attorney who represents the other party should still not represent both.