Practical Method of Protecting Your Assets
One of the areas in family law that generates a tremendous amount of litigation is the area of Pre-Nuptial Agreements. There is no question that in some instances pre-nuptial agreements, “Prenups,” can be of benefit to some people. The benefits are that they allow each spouse to clearly establish what separate property they own and wish to maintain as being separate property. They can also be of value in deciding how marital property will be distributed and how debts will be handled. Additionally, prenups can address issues involving alimony and other financial obligations.
Significant problems can arise, however, with regards to the validity of a pre-nuptial agreement. Far too often these documents are put together at the last minute or in a haphazard manner. Both of these approaches, along with pre-nuptial provisions that are unreasonable in nature, can result in the agreement being declared void.
In order to create a valid prenuptial agreement, it is essential that each party fully disclose to the other the status of their financial affairs, including their assets, liabilities and income. It is also essential that both parties have ample time to consider and reflect upon the agreement. The case law is clear, a party cannot waive a right that they do not know they have to begin with. A valid prenup outlines the rights being waive and discloses them to the parties so as to ensure that the waiver is knowing and valid.
A great many agreements are challenged in Court and the two most common reasons for their being declared null and void are the failure to properly disclose one’s assets and a party not being given sufficient time to consider the prenup and consult with an attorney. An agreement presented to a bride just before a wedding is suspect, at best, and ones that do not include an adequate disclosure of the parties assets or that contain unreasonable provisions are easily subject to attack.
If you are thinking of having a prenup done, or someone has asked you to review and sign one, it is important that you talk with an experienced family law attorney to discuss several issues:
- Do you actually need a pre-nuptial agreement?
- What is the purpose?
- What procedures must be followed in order to insure a valid agreement is created?
- What special considerations may apply in your case to insure the prenup is valid?
The idea of writing an agreement that says “what’s mine is mine and what’s yours is yours” seems like a fairly simple and straight forward problem. Unfortunately, it is not simple and it is not straight forward. There are various types of assets that appreciate in different ways and each type of appreciation must be specifically addressed. Did you know that there was a recent case law decision by an Appellate Court that ruled that “any and all types of appreciation” did not mean “any and all?” Rather “any and all” only meant passive appreciation and not active appreciation. These sorts of nuances can have a significant effect on the validity of your pre—nuptial agreement and, unless you are an expert in Marital and Family Law, you cannot begin to understand the nuances and complexities of a pre-nuptial agreement. As a Board Certified Expert in Marital and Family Law, Mr. Williams has the experience and training necessary to help you through the maze of pre-nuptial issues and to draft you a document that is valid and enforceable.
You should also be aware that post-nuptial agreements are becoming more common as well. We frequently use these types of documents when the financial circumstances of the parties change after marriage. A pre-marital business may develop into a major financial asset, one party may win the lottery or inherit a great deal of money. Any major financial development may justify the parties entering into a post-nuptial agreement for the purposes of establishing their rights to their assets post marriage. Here again, these contracts can be complicated to draft in a way to insure they are enforceable and valid. If you are thinking of having a pre-nuptial agreement or post –marital agreement written, make sure you use an expert in Marital and Family Law to prepare your agreement. Call us today at (727) 531-8737 to schedule a free consultation to discuss your situation.