Divorce Information: Pre-marital and Post-Marital Asset Protection

Pre-marital and post-marital agreements can alter the division of marital (community) property. An ante-nuptial or pre-marital agreement is a legal contract. The party of the first part is about to marry the party of the second part, and all that. The agreement basically works out ahead of time the details of your (heaven forbid!) divorce: the rights each spouse will have to the property that they brought into and/or acquired during the marriage, and how it should be divided. The “pre-nup” might also define the couple’s respective inheritance rights in the event of death, or the financial support one would owe the other in the event of divorce. If it hits all the marks listed below, a pre-marital or post-marital contract alters the state's typical rules for the division of marital property that accompany divorce or death. Watch out though! These sorts of agreements must take into consideration any of the spouses’ existing or proposed wills and trusts.

A post-marital agreement is similar, except that it is signed after the marriage. It is capable of doing just about everything a pre-nup can do except attend the wedding—like the name says, it is a post-marital agreement. In the event of divorce or death, it may supply the specifics regarding the couple’s assets. A marital settlement agreement is a particular form of post-marital agreement that is a part of many divorce proceedings. It specifies the distribution of property and responsibility for debt between the respective spouses as they dissolve their marriage.

Of course, any agreement must meet requirements of state law. Contracts are like that. To be valid in most states the agreement must:

1. Be in writing; AND
   
2. Be signed by both spouses; AND
   
3. Be accompanied by sufficient disclosure of the assets, income and debt of each spouse; AND
   
4. Allow ample opportunity to consider its contents, and obtain legal advice before signing; AND
   
5. Be entered into freely and voluntarily (which means free from fraud or duress); AND
   
6. Have “consideration,” which is given by and given up by each party to the agreement. In common purchase-sale agreements, one gives up an item while the other gives up the monetary cost for that item, otherwise it would be stealing! In marital agreements, the consideration given up by each party is the regular marital statutory rights they would have otherwise had.

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