Pre-marital agreements (formerly called “pre-nuptial” agreements) are contracts that parties enter into upon marriage which dictate how they would like to divide their assets should they decide to dissolve their marriage. When parties decide to obtain a dissolution of their marriage and they have a pre-marital agreement, they often wonder how the pre-marital agreement will be enforced.
First, the parties may agree that the premarital agreement should be enforced in the divorce decree. If the parties are agreeing to the divorce, and are in agreement that the premarital agreement should stand, the party whose attorney is drafting the divorce decree should be given a copy of the premarital agreement. The drafting attorney can then incorporate the terms of the premarital agreement directly into the divorce decree. It is simple to enforce a premarital agreement when the parties agree that it is valid and enforceable.
The second type of scenario occurs when one party wishes to abide by the terms of the premarital agreement and the other party, for a variety of reasons, either alleges the premarital agreement is invalid or otherwise should not be enforced. In this scenario, it will be necessary for the divorce Judge to determine which portions, if not all of them, of the premarital agreement should be enforced. Sometimes an entire premarital agreement is enforceable. Other times, only a portion of the premarital agreement is enforceable. Whether or not the premarital agreement will be enforced is a risk that parties take when they enter into the agreement. Constantly changing law and circumstances of the parties both can contribute as to whether or not the premarital agreement will actually be enforced at all, or to what extent.
If you are divorcing and have a premarital agreement and questions about the enforcement of same, or, if you wish to incorporate same into the terms of your divorce decree, our attorneys can help you. Please feel free to call our office to schedule a consultation.