Property Division in Divorce: Prenuptial and Postnuptial Agreements

Property Division in Divorce: Prenuptial and Postnuptial Agreements

Prenuptial and postnuptial agreements refer to agreements made between the spouses before and after marriage, respectively. Among other things, these contracts enable the spouses to define their respective property rights, which can be very helpful in cases of divorce or legal separation. In general, the four standards or conditions that must be met for effective enforcement of these agreements are:

  1. there must be full disclosure by the parties;
  2. each party must have independent representation by his/her own lawyer;
  3. there must be a total absence of coercion or duress; and
  4. the agreements’ terms must be fair and equitable.

Prenuptial agreements are widely recognized and accepted in most states. The counterpart for unmarried couples is called a “cohabitation agreement.” Prenuptial agreements, also called “prenups” or “prenupts,” are most common when at least one spouse is comparatively wealthy. Prenuptial agreements typically dictate distribution of property in divorce, and may control some rights when a party dies during the marriage.

Postnuptial agreements are marriage-related agreements that the spouses make after the wedding. Such agreements generally are either: (1) separation agreements where the parties are contemplating divorce and are separated or intend to separate; or (2) contracts between spouses in an ongoing marriage where separation and divorce are not intended. In case of an ongoing marriage, the contract that the husband and wife enter for property division may be called a “property settlement agreement,” and may be called a “separation agreement” if the spouses are contemplating separation. Property settlement agreements need not be conditioned on separation, and the parties can continue to enjoy their property rights during marriage.

Some states recognize oral prenuptial and postnuptial agreements, but many do not. Additionally, prenuptial and postnuptial agreements often require preparation by an experienced attorney because such agreements involve complex issues and are affected by the states’ individual property division schemes.

Copyright 2012 LexisNexis, a division of Reed Elsevier Inc.