The speed and ease of your divorce depends on many different things. For example, was your pre or post nuptial agreement done correctly? Unfortunately, I have seen pre and post nuptial agreements that are done because somebody got a form off the Internet, or they went to a low-cost attorney, or they went to an attorney that does not practice divorce and family law. A lot of times those agreements do not fully protect the monied spouse because it does not check for things such as active appreciation of a professional practice, active appreciation of money into a retirement account, or other things of that nature. It may leave things vague, it may say the amount in a particular bank account is someone’s separate property, but what happens if money is added to that account during the time in the marriage? If your pre- or post-nuptial agreement does not address that then your spouse still has a chance to come back.
Another thing is that the more time that passes between a pre- or post-nuptial agreement and the divorce, the more likely it is that it will not address issues like custody, visitation, and child support of a minor child or children. The more time that goes along, the weaker any provisions that address those issues becomes. For instance, if parties are divorced years after a pre-nuptial or post-nuptial agreement is put into place, even if it does address child support, custody, or visitation, oftentimes a court will say, “We’re not going to honor that agreement because it’s stale at this point and we want to decide those issues for the time of the divorce and consider all current factors.”
I often advise my clients or potential clients on pre-nuptial or post-nuptial agreements that maintenance, known as alimony, is a weak provision because the only thing that that agreement can do is to capture what the current circumstances are. Unless you have very specific provisions in that agreement saying, “No matter what the case is even, if the person is earning a billion dollars a year and the other person is a homemaker, it still doesn’t mean that person gets alimony or maintenance.” You can have provisions like that in the agreement; it’s stronger to say it than not, but a court is probably not going to honor that pre-nuptial or post-nuptial agreement if it would result in a gross injustice to the non-monied spouse. Especially where the agreement was executed many years before the divorce or if there has been a substantial change in financial circumstances between when the agreement is executed and the divorce is done. There could be a lot of different issues on which the agreement says one thing and the court will consider what the current circumstances are on various issues as to whether to enforce that pre or postnuptial agreement.
What Factors Can Make Enforcing A Pre-Nuptial or a Post-Nuptial Agreement Difficult?
Several factors can make enforcing a pre or postnuptial agreement difficult. The first is not having it done by an attorney who concentrates their practice in divorce and family law and therefore doesn’t know what they’re doing. You want somebody that practices divorce or family law for a majority of their practice.
It also depends on the circumstances surrounding the execution of the pre or postnuptial agreement. For instance, if one party makes a significant income of 1 to 10 million dollars a year and the other party makes low income, then they have to be informed both in the agreement and orally that they have a right to independent counsel to represent them. Additionally, the moneyed spouse has to offer to pay a portion of, if not all, of the fees that any attorney would otherwise charge in the negotiation and execution of the agreement. If your agreement does not say that then it will make it difficult to enforce.
Another thing that may make it difficult to enforce is if you do a pre or post nuptial agreement on the eve of the wedding. If somebody does that, the non-monied spouse may argue that their agreement was coerced. They’ll argue they had lined up guests, people coming in from out of town, bought the dress, and invested money in the reception; not to mention the emotional factors. Then the monied spouse slaps a prenuptial agreement on their desk and says “sign this or else we’re not getting married.” You want to be very cautious about doing things like that because same can be seen by a court as coercion. If you’re going to do a pre-nuptial or post-nuptial agreement, you should mention that months or more before you’re due to get married. You should strive to execute that agreement many weeks before you get married – before somebody is gearing up to have people coming in from out-of-town for the wedding.
You would need to look at the underlying factors, then see what it says vs. what the current circumstances actually are. A court is unlikely to approve a pre-nuptial or post-nuptial agreement that really screws somebody over. If somebody is otherwise due to receive a high amount of alimony/maintenance or millions of dollars of assets – and the pre or postnuptial agreement says they get nothing – then a court is going to be quite suspicious about whether that agreement was executed fairly.
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