Pre and Postnuptial Agreements

Pullman & Comley Family Law attorney Kelly A. Scott authored an article for Best Lawyers explaining what prenuptial and postnuptial agreements are and how they can impact a divorce.

"The recognition and enforceability of prenuptial and postnuptial agreements have greatly expanded in the past 30-40 years," Kelly writes, "especially with the modernization of divorce, including the elimination in most states of the requirement that fault must be proven before a divorce will be granted. Today, all states recognize the enforceability of prenuptial and postnuptial agreements, at least those that meet the state’s procedural requirements and otherwise comply with general contract law."

"While the area of law governing prenuptial and postnuptial agreements is quite complex, and procedural requirements at times drastically vary from state to state, there are certain overlapping principles that generally apply," she adds.  For example: the agreements must be reduced to writing; a prenuptial agreement must be executed before the marriage, and the intended marriage must occur; there is often a requirement that each party has the opportunity to consult with independent counsel and that each party prepare a financial disclosure; and there is usually a requirement that the agreement no include provisions that otherwise are against public policy. 

"Generally speaking, a prenuptial agreement will be enforceable regardless of where the parties reside in the future, assuming such residence remains in the United States," says Kelly, while "there is less uniformity when it comes to how and whether postnuptial agreements are enforced." 

The use of pre- and postnuptial agreements has become far more routine in recent years, and while protecting already acquired assets is still one of the most common reasons couples enter into these agreements, they are also seen as a way to protect the future acquisition of income and assets. "That might mean that one of the intended spouses expects to receive substantial inheritances or business assets from his or her family during the marriage in the future. Or it might mean that one party, or even both parties, has substantial earnings potential in the future based on his or her career and wants to protect those future earnings and/or provide for the specifics of how those future earnings and assets acquired from same will be treated in the event of a future divorce," Kelly says.

Kelly explains that these marital agreements can vary in scope and should be specific to the individual circumstances of the contracting parties. To read the full article, please visit the Best Lawyers website.