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Frequently Asked Questions on Prenuptial Agreements (I)

Law Offices of Yu & Associates

What is a prenuptial agreement?

A prenuptial agreement ("prenup") is a written contract that two people enter into before they get married. A prenuptial agreement fully discloses the assets and debts held by both parties before marriage, determines the ownership of prenuptial property, and stipulates how to divide common property acquired after marriage in the event of divorce or death. These documents are used to ensure that both parties to the marriage retain ownership of their prenuptial assets.

How long is a prenuptial agreement valid?

A prenuptial agreement does not expire unless the prenuptial agreement specifically states that it expires. The agreement needs to have specific provisions to determine when and if the prenuptial agreement will expire.

What is the difference between a prenuptial agreement and a postnuptial agreement?

The main difference between a prenuptial agreement and a postnuptial agreement is when the agreement is signed. As the name suggests, a prenuptial agreement is signed before a couple gets married, while a postnuptial agreement is signed after a couple is already married.

Aren't prenuptial agreements only for celebrities and wealthy people?

No, you don't have to be a millionaire or celebrity to consider a prenuptial agreement. Every single person can benefit from a prenuptial agreement. You may think that you do not have much wealth, but many people have more assets than they think. From stocks to bonds to retirement accounts, from real estate to collectibles, many people have a lot of assets at the time of divorce. You need to think of ways to protect yourself in the event of your marriage goes wrong.

In general, if you have been married before, or if you had children from a previous marriage, or if you have substantial wealth, you will need a prenuptial agreement to protect yourself. A prenuptial agreement is essential for remarried couples with substantial assets or large estates. In this case, a prenuptial agreement can help protect the prenuptial assets of each spouse. Especially if you remarried with children from a previous marriage, and you want to pass some or all of your accumulated wealth to the children from your previous marriage, then it is very important for you to sign a prenuptial agreement. If you do not sign a prenup that spells out these details, your new spouse will automatically receive a portion of your estate upon your death.

What are the basic requirements for a legal prenuptial or postnuptial agreement?

For prenuptial and postnuptial agreements to be valid, legal, and enforceable, the following basic requirements must be met:

  • Voluntary: The parties to a prenuptial or postnuptial agreement must sign the agreement voluntarily. Circumstances in which either party forces or threatens the other party to sign will make the prenuptial or postnuptial agreement invalid.
  • Full Disclosure: Prenuptial and postnuptial agreements must include full disclosure of assets to be considered valid and enforceable. Each party must, at the time of entering into the agreement, fully and fairly disclose their assets, liabilities and income to the other party. This is crucial because prenuptial and postnuptial agreements are designed to clarify how financial issues such as assets and liabilities will be handled if the marriage ends. If a party relies on inaccurate or incomplete information, the agreement will not be enforceable.
  • Fairness: Prenuptial and postnuptial agreements cannot be unreasonable. If a court finds that a prenuptial or postnuptial agreement is extremely biased and unfair, with one party clearly having an advantage over the other, the agreement will be deemed unfair and ineffective.
  • Written: Oral prenuptial and postnuptial agreements will be considered void. They must be in writing. Both spouses must sign a prenuptial or postnuptial agreement in writing. It is recommended that both parties sign in front of a notary or witness to make the agreement valid and avoid possible challenges in the future.

What should a prenuptial or postnuptial agreement contain?

Prenuptial and postnuptial agreements are contracts between spouses that govern issues such as how the couple will divide their assets in the event of a divorce. The following aspects are generally covered in prenuptial and postnuptial agreements:

  • Property division
  • Debt allocation
  • Spousal support
  • Insurance or retirement benefit issues
  • Inheritance issues
  • Tax filing issues
  • Marital responsibility issues

Continue reading Frequently Asked Questions on Prenuptial Agreements (II)

The above is a general introduction, and should not be construed as individual legal advice. For specific legal questions, please contact the Law Offices of Yu & Associates. Tel: 301-838-8986, Fax: 202-595-1918; E-mail: syu@yulegal.com, Address: 110 N. Washington St., Suite 328E, Rockville, MD 20850. (All rights reserved.)

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