The Role of a Pre-Nuptial or Post-Nuptial Agreement during the Division of Property

Couples entering into a marriage may choose to create a pre-nuptial agreement to protect each other and their children. While generally more common in high net-worth situations, pre-nuptials can be employed for any reason when it comes to creating agreements on the distribution of assets in the event of a divorce or if one of the spouses passes away. A post-nuptial agreement serves the same purpose as a prenup but is entered into after the couple has married. These agreements can go far to smooth the divorce process and the division of property should the marriage fail. The agreement clearly lays out what is considered marital property, how it is to be divided, provisions or lack thereof for spousal support and other issues. Nevertheless, there are still circumstances such as any contest to an existing agreement which could cause complications. In such instances, the task of dividing property fairly may be turned over to the courts in a process called "equitable distribution". Work with a knowledgeable divorce lawyer to learn more about these issues.

If the case comes to needing equitable distribution then there are three basic steps the court must take. First is to examine all property that was shared between the couple, settled upon one or the other spouse or property purchased during the marriage. All assets and debts are looked into and then those that are actually marital property are identified as such. The next step is to value the entire property taking into consideration any debts, mortgages, etc. After these two steps are completed, the marital property is distributed to each party. How it is divided is not necessarily a blind "you get half and you get half" proposition. Many factors including the personal financial circumstances of each former spouse, contributions to the marital property during the marriage and children all effect how the property and assets are finally distributed.

Are you considering a prenuptial agreement?

It is understandable that approaching the subject of a prenuptial—or postnuptial agreement—with someone you plan to spend the rest of your life with can be a tricky matter. It is important to keep in mind that such agreements are made in the spirit of protection for both parties and can actually bring a great sense of peace of mind. A family law attorney at the Law Offices of Avram Rosen may be able to help you and your partner create an agreement that aligns with these purposes. Contact us today to discuss your options.