A Prenuptial Agreement is executed prior to marriage and a Postnuptial Agreement is executed after a marriage takes place. If your family is the result of multiple marriages or prior relationship, a Prenuptial or Postnuptial Agreement can be an effective estate planning tool to ensure that children from different marriages or relationships will be treated in the manner that you wish. With a Prenuptial or Postnuptial Agreement, you can determine what goes to your current spouse and what goes to your children from a prior relationship, marriage or marriages.
A Prenuptial or Postnuptial Agreement will allow spouses to address how debts are paid. For example, it can spell out that each is responsible for the debts associated with their personal hobbies, or their children from prior relationships for things such as clothing, etc. It can also provide a framework on how debts are divided upon a divorce or death of one party. In the same fashion, it can also provide for the distribution of assets that exist at the time of divorce or death of one party.
Prenuptial or Postnuptial Agreements can be utilized to provide life estates in a home or homes so that the surviving spouse does not find themselves without a place to live, or be shut out from enjoying a second or vacation home. Likewise, income from investments can be directed to a surviving spouse with the principal going to children from a prior relationship or marriage.
Both documents can provide asset protection and address the issue of alimony (known as maintenance in the Commonwealth of Kentucky) in the event that the marriage ends in divorce. This is especially helpful in the situation where you have a spouse who had no income or was a stay-at-home spouse. By addressing the alimony (or maintenance) issue in a Prenuptial or Postnuptial Agreement, it will allow you to make your estate plans as you will already know in advance what your future support obligation to your spouse would be in the event of a divorce, thereby allowing you to know what financial arrangements you need to make to ensure that your estate plan does not get severely impacted in the event of a divorce.
One area that cannot be addressed in Prenuptial or Postnuptial Agreements has to do with children. This would include custody matters, child support issues, and parenting schedules.
Another feature that can be provided for in both a Prenuptial and Postnuptial Agreement is how disputes upon divorce or death of one party will be settled. Mediation and arbitration are two options which allow parties to settle disputes without the intervention of a court. Both of these options allow for a faster and less expensive method of working out and/or settling disputes than traditional court room proceedings.
In order for a Prenuptial or Postnuptial Agreement to be valid and enforceable, there must be full disclosure by both sides of all assets they own or possess. In addition, each party must be represented by their own independent attorney. Most Prenuptial or Postnuptial Agreements continue until the passing of both parties. However, the parties can agree to a sunset provision which provides the Prenuptial or Postnuptial Agreement expires or is no longer valid or enforceable after the passage of a certain period of time or the occurrence of certain event or series of events.
Whether it is your first, second or third marriage, Prenuptial or Postnuptial Agreements can protect your wealth and assets accumulated prior to marriage and ensure that your estate plan remains intact.