by Jason Hennessey
A prenuptial (commonly abbreviated as prenupt) agreement is an agreement entered between a man and a woman who intend to get married, just before they tie the knot. Various countries across the world have been recognizing prenuptial marriage agreement for a long time. However, the terms of the agreement may vary from country to country according to the laws of those particular countries. Despite that, there are some aspects that remain common to most of the constitutions across various countries which apply the agreement. For instance, many agreements will show how to partition family property in case of divorce and how to take responsibility of the spouse and the children in the event of marriage break-down.
Many countries such as Germany, Japan, Canada, Great Britain, France, and others have had marital laws of which some have prenuptial agreements included. According to these laws, both the brides and the groom's parties should have a lawyer representing each side to ensure that the law is enforced without any slip-up. At times, both camps may retain a private arbitrator to witness and approve a prenuptial agreement signing, to ensure that the event has taken place as expected by the laws of the country. Some judges and law offices recommend presence of both the bride and the groom family members and coverage by media, for instance, through video recording.
Most couples are in support of Prenuptial Agreement due to disputes that may arise and cause termination of marriage. The agreement protects the spouse's property and guarantees responsibility of the spouses to the children. However, since most of the times these laws are unenforceable, prenuptial agreement may not be powerful enough to limit the rights and alimony of both parties. Therefore, it may not be possible to set aside some assets and execute prenuptial agreement after the divorce of the said parties.
Apart from guiding on what to do in case of divorce, prenuptial agreement also dictates what to be done in case of death of one or both spouses. The agreement acts as a contract or a will to claim all your probate rights; on property, homestead, allowances, predetermined heir rights, right to stand as an executor or administrator of the property of the spouse.
Contrary to what majority of the couples may believe, asking to have prenuptial agreement does not necessarily mean you are anticipating divorce. Through this agreement, family assets, ties and inheritances can be preserved. In all the marriages, disputes are more likely to erupt. This does not necessarily mean that there is no trust between the family members. For instance, financial matters are like to arise, and need to be faced. Taking a prenuptial agreement ensures that all is protected.
However, it is important to discuss the matter of the agreement with your partner before walking down the aisle. Be open to each other without having to hide thoughts and feelings. This will ensure that your trust on each other concerning the future of the family is solidified. Else, prenuptial agreement can not guarantee you will live together, in health and sickness, in richness and in poverty until death do set you apart.
About the Author
Jason Hennessey is the President and founder of 1weddingsource.com, today's leading wedding social networking planning site. 1WeddingSource is a nationwide wedding directory of wedding vendors connecting brides from almost every major center in America.
Showing posts with label premarital agreement. Show all posts
Showing posts with label premarital agreement. Show all posts
Saturday, June 6, 2009
Monday, November 26, 2007
Are Prenuptial Agreements Affected by Changed Circumstances?
by Curtis J. Romanowski
People who go through the bother and expense of entering into prenuptial agreements, sign the agreement with the expectation that the agreement will be enforceable and will give them the future protection that they seek. Fundamentally, we are talking about a contract between competent adults, which should ordinarily be enforceable and not subject to modification. Unfortunately, prenuptial agreements are routinely attacked at the time when party or the other seeks to invoke its terms.
Clients must therefore understand that contracts for goods or services are different than contracts between married people, or between those who plan to be married. In New Jersey, the New Jersey Supreme Court in the case known as Lepis V. Lepis, created the quintessential loophole, enabling potentially endless modifications of family support provisions, regardless of whether they were ordered by the Court or stipulated to by the parties. The only requirement for this review is a significant and relevant change of circumstances.
Such contract-loosening changes are typically required to be unanticipated, substantial and non-temporary. The powder keg language of Lepis reads as follows: "Contract principles have little place in the law of domestic relations." That being said, NJ divorce lawyers must pay close attention to five key points.
First, it is important to note that properly drawn prenuptial agreements are given the initial presumption of validity. By "properly drawn" we mean that the parties were independently represented by counsel, that there was no coercion or duress, that there was an appropriate level of financial disclosure, and that the agreement was essentially fair.
At the time of attempted enforcement by one party, the burden of proof for showing that the agreement is somehow unconscionable is borne by the party seeking to avoid enforcement. Otherwise, the prenuptial agreement should be enforced.
Second, a prenuptial agreement will not be considered to be unconscionable unless it can be shown that enforcement of the agreement will result in a standard of living for any party that is "far below that which was enjoyed before the marriage."
Third, soon after the Supreme Court's finding in Lepis, clever New Jersey divorce attorneys came up with the idea of incorporating anti-Lepis clauses into their property settlement agreements. This sort of thinking can be applied to the drafting of a prenuptial agreement as well. Such clauses can prevent alimony liabilities, or can ostensibly limit them in the event of divorce. To add yet another level of complexity, the anti-Lepis clause itself can be the subject of a modification motion. As equivocal as this may sound, sometimes these clauses are enforceable, and sometimes they are not.
Fourth, if the objective is to attack an antenuptial agreement at the time of attempted enforcement, the New Jersey divorce lawyer is wise to read the case of Marchall v. Marchall. In Marchall, the Court stated that antenuptial agreements should be regarded as subject to modification by reason of "changed circumstances" in the same manner as property settlement agreements. This statement, however, was only in dictum, and does not fall into the category of binding precedent. Notably, Marchall was only a Trial Court decision, and therefore not binding on the courts of other counties, as an Appellate level or Supreme Court level decision would be. The Marchall decision was also decided four years prior to the adoption of the Uniform Premarital Agreement Act in 1988. Furthermore, the Marchall decision predated the Appellate level decision in Morris v. Morris, which case expressed the teter totter viewpoint that sometimes anti-Lepis clauses are enforceable and sometimes they are not.
Fifth, the case of Pacellii v. Pacelli must also be explored. In Pacelli, a mid-nuptial agreement was involved. This agreement was entered into between the parties some 11 years after their marriage and after having two children. The Appellate Division refused to enforce this agreement. The Appellate panel found that the agreement was unfair when it was entered into in 1986 and likewise unfair when enforcement was sought in 1994. The Court did not believe that such mid-nuptial agreements should be treated the same way antenuptial agreements are treated. The Appellate Division opined that "the dynamics and pressures involved in a mid-marriage context are quantitatively different."
When a prenuptial agreement is executed under circumstances devoid of coercion or duress and where the requirements of the Uniform Premarital Agreement Act are met, Lepis should not apply, and the agreement should not be modified. The only exception would be under the unconscionability standard of the act. Ironically, that is exactly the same standard that was used for modification of New Jersey matrimonial agreements prior to Lepis, under Schiff v. Schiff. Apparently, sometimes the old ways are the best ways.
About the Author
This article was written by Curtis J. Romanowski, Esq. of Romanowski Law Offices. Voted "New Jersey Super Lawyer Family Law" for the second consecutive year.
People who go through the bother and expense of entering into prenuptial agreements, sign the agreement with the expectation that the agreement will be enforceable and will give them the future protection that they seek. Fundamentally, we are talking about a contract between competent adults, which should ordinarily be enforceable and not subject to modification. Unfortunately, prenuptial agreements are routinely attacked at the time when party or the other seeks to invoke its terms.
Clients must therefore understand that contracts for goods or services are different than contracts between married people, or between those who plan to be married. In New Jersey, the New Jersey Supreme Court in the case known as Lepis V. Lepis, created the quintessential loophole, enabling potentially endless modifications of family support provisions, regardless of whether they were ordered by the Court or stipulated to by the parties. The only requirement for this review is a significant and relevant change of circumstances.
Such contract-loosening changes are typically required to be unanticipated, substantial and non-temporary. The powder keg language of Lepis reads as follows: "Contract principles have little place in the law of domestic relations." That being said, NJ divorce lawyers must pay close attention to five key points.
First, it is important to note that properly drawn prenuptial agreements are given the initial presumption of validity. By "properly drawn" we mean that the parties were independently represented by counsel, that there was no coercion or duress, that there was an appropriate level of financial disclosure, and that the agreement was essentially fair.
At the time of attempted enforcement by one party, the burden of proof for showing that the agreement is somehow unconscionable is borne by the party seeking to avoid enforcement. Otherwise, the prenuptial agreement should be enforced.
Second, a prenuptial agreement will not be considered to be unconscionable unless it can be shown that enforcement of the agreement will result in a standard of living for any party that is "far below that which was enjoyed before the marriage."
Third, soon after the Supreme Court's finding in Lepis, clever New Jersey divorce attorneys came up with the idea of incorporating anti-Lepis clauses into their property settlement agreements. This sort of thinking can be applied to the drafting of a prenuptial agreement as well. Such clauses can prevent alimony liabilities, or can ostensibly limit them in the event of divorce. To add yet another level of complexity, the anti-Lepis clause itself can be the subject of a modification motion. As equivocal as this may sound, sometimes these clauses are enforceable, and sometimes they are not.
Fourth, if the objective is to attack an antenuptial agreement at the time of attempted enforcement, the New Jersey divorce lawyer is wise to read the case of Marchall v. Marchall. In Marchall, the Court stated that antenuptial agreements should be regarded as subject to modification by reason of "changed circumstances" in the same manner as property settlement agreements. This statement, however, was only in dictum, and does not fall into the category of binding precedent. Notably, Marchall was only a Trial Court decision, and therefore not binding on the courts of other counties, as an Appellate level or Supreme Court level decision would be. The Marchall decision was also decided four years prior to the adoption of the Uniform Premarital Agreement Act in 1988. Furthermore, the Marchall decision predated the Appellate level decision in Morris v. Morris, which case expressed the teter totter viewpoint that sometimes anti-Lepis clauses are enforceable and sometimes they are not.
Fifth, the case of Pacellii v. Pacelli must also be explored. In Pacelli, a mid-nuptial agreement was involved. This agreement was entered into between the parties some 11 years after their marriage and after having two children. The Appellate Division refused to enforce this agreement. The Appellate panel found that the agreement was unfair when it was entered into in 1986 and likewise unfair when enforcement was sought in 1994. The Court did not believe that such mid-nuptial agreements should be treated the same way antenuptial agreements are treated. The Appellate Division opined that "the dynamics and pressures involved in a mid-marriage context are quantitatively different."
When a prenuptial agreement is executed under circumstances devoid of coercion or duress and where the requirements of the Uniform Premarital Agreement Act are met, Lepis should not apply, and the agreement should not be modified. The only exception would be under the unconscionability standard of the act. Ironically, that is exactly the same standard that was used for modification of New Jersey matrimonial agreements prior to Lepis, under Schiff v. Schiff. Apparently, sometimes the old ways are the best ways.
About the Author
This article was written by Curtis J. Romanowski, Esq. of Romanowski Law Offices. Voted "New Jersey Super Lawyer Family Law" for the second consecutive year.
Thursday, November 15, 2007
Premarital and Living Together Agreements - Do You Need One?
by Glenna Tooman
Nearly everyone dislikes the idea of creating a legal agreement to govern his or her relationship. It seems to take the spontaneity and trust out of the relationship and reduces it to a business arrangement. However, in some cases it may be the right thing to do.
First, let's look at the difference between the two agreements. Premarital agreements are created between two individuals who are planning to get married in the near future. Living together agreements, also called property agreements, are created between two individuals who do not plan to marry immediately or perhaps at all, but who may accumulate property together. This can include same-sex couples and long-term roommate situations, as well as couples who choose to live together for an extended period.
Pre-marital Agreements: Generally, a premarital agreement is a good idea when one or both parties brings property into the marriage, one makes a larger income, or one or both owns a business. It becomes a necessity if children are involved. The agreement will indicate the property owned by each individual before marriage and how property purchased after marriage will be owned, managed, or controlled. It may also cover such issues as how jointly incurred bills will be paid. If one spouse has children or grandchildren, that person may indicate through the agreement (and a will) to leave the bulk of their estate to their heirs at the time of death rather than leaving it to the surviving spouse. The agreement will also cover the details of any settlement or alimony should the marriage end in separation or divorce.
The Uniform Pre-Marital Agreement Act is a federal law that provides legal guidelines for premarital agreements. Agreements are usually enforceable in court unless it can be proven that one party was forced to sign the agreement against his or her will or that the agreement is written in such a way as to promote divorce, such as providing an unusually large settlement.
Living Together Agreements: Living together agreements also indicate the property that each party brings into the relationship. The agreement spells out how property jointly acquired during the relationship will be owned and what will happen to the property if the couple separates. The agreement may also indicate how money will be handled (does each person handle their own; will they have a joint account; or some other arrangement). If the couple later decides to marry, the living together agreement will no longer be valid and should be replaced by a pre-marital agreement.
Non-financial issues, such as who does the cooking and who does the laundry, are not covered by either a premarital agreement or a living together agreement. An attorney should prepare both agreements, since the simplest of mistakes can make the entire agreement void.
Though you may not like the idea of signing a pre-marital or living together agreement, having one could protect you and your assets if your relationship should end, particularly if it ends on less than friendly terms.
Copyright © 2002, Glenna Tooman, Memory Makers Event Planning, LLC; all rights reserved
About the Author
Glenna Tooman is the owner of Memory Makers Event Planning, LLC. located in Boise, Idaho. Glenna is an internationally recognized authority on wedding and event etiquette. She writes extensively on issues of interest to the event planning industry and to small businesses. Visit her web site at www.memorable-events.com.
Nearly everyone dislikes the idea of creating a legal agreement to govern his or her relationship. It seems to take the spontaneity and trust out of the relationship and reduces it to a business arrangement. However, in some cases it may be the right thing to do.
First, let's look at the difference between the two agreements. Premarital agreements are created between two individuals who are planning to get married in the near future. Living together agreements, also called property agreements, are created between two individuals who do not plan to marry immediately or perhaps at all, but who may accumulate property together. This can include same-sex couples and long-term roommate situations, as well as couples who choose to live together for an extended period.
Pre-marital Agreements: Generally, a premarital agreement is a good idea when one or both parties brings property into the marriage, one makes a larger income, or one or both owns a business. It becomes a necessity if children are involved. The agreement will indicate the property owned by each individual before marriage and how property purchased after marriage will be owned, managed, or controlled. It may also cover such issues as how jointly incurred bills will be paid. If one spouse has children or grandchildren, that person may indicate through the agreement (and a will) to leave the bulk of their estate to their heirs at the time of death rather than leaving it to the surviving spouse. The agreement will also cover the details of any settlement or alimony should the marriage end in separation or divorce.
The Uniform Pre-Marital Agreement Act is a federal law that provides legal guidelines for premarital agreements. Agreements are usually enforceable in court unless it can be proven that one party was forced to sign the agreement against his or her will or that the agreement is written in such a way as to promote divorce, such as providing an unusually large settlement.
Living Together Agreements: Living together agreements also indicate the property that each party brings into the relationship. The agreement spells out how property jointly acquired during the relationship will be owned and what will happen to the property if the couple separates. The agreement may also indicate how money will be handled (does each person handle their own; will they have a joint account; or some other arrangement). If the couple later decides to marry, the living together agreement will no longer be valid and should be replaced by a pre-marital agreement.
Non-financial issues, such as who does the cooking and who does the laundry, are not covered by either a premarital agreement or a living together agreement. An attorney should prepare both agreements, since the simplest of mistakes can make the entire agreement void.
Though you may not like the idea of signing a pre-marital or living together agreement, having one could protect you and your assets if your relationship should end, particularly if it ends on less than friendly terms.
Copyright © 2002, Glenna Tooman, Memory Makers Event Planning, LLC; all rights reserved
About the Author
Glenna Tooman is the owner of Memory Makers Event Planning, LLC. located in Boise, Idaho. Glenna is an internationally recognized authority on wedding and event etiquette. She writes extensively on issues of interest to the event planning industry and to small businesses. Visit her web site at www.memorable-events.com.
Tuesday, January 16, 2007
Divorce and Premarital Agreements: What are Premarital Agreements?
by Steven C.
Before getting married, many couples are now choosing to reach a pre-marital agreement. Premarital agreements also know as pre-nuptial or ante-nuptial agreements, once seemed to be reserved to Hollywood stars or Celebrities for Hollywood divorces or Celebrity divorces.
However, over the last decade it became more and more common for the common spouse to sign a premarital agreement contract with his/her future spouse, especially on the West Coast. Most people believe that premarital agreements are only meant to allow both parties to keep their own assets if the marriage fails.
But a premarital agreement can also provide children the right to receive the assets, or a large part of them, if both parents pass away. One of the main purposes of a pre-marital agreement is to work out all the divorce details rather than leave these potential issues unresolved. The increasing number of pre-marital agreements can be seen as an indicator that couples acknowledge that their marriage has a fifty percent chance of ending up in divorce and prefer to reach an agreement prior to marriage in order to prevent future disputes in the event of a divorce or dissolution of marriage. What makes a good pre-marital agreement? A pre-marital agreement covers wide arrays of aspects and it is important to determine what you should and should not include in your pre-marital agreement.
First, a pre-marital agreement should contain a detailed pre-marital history and family circumstances. This can be very important when one party is marrying for a second or third time and has other children. Provisions should be made to consider the past history of one party.
Second, there must be a thorough written disclosure of both parties' assets and liabilities brought into the marriage.
Third, the agreement must stipulate how earnings during the marriage period will be shared in case of a divorce. Eventually, the parties should be given enough time to thoroughly review the agreement. This is why couples are seeking to be more advised about pre-marital agreements and are reaching pre-marital agreements well in advance of the wedding.
Do I need an attorney to make a pre-marital agreement? If you decide to reach a pre-marital agreement with your future spouse you may want to consult an attorney. Even though a pre-marital agreement may not look so complicated on its face and you think you could save some money by doing it yourself it could be helpful to at least consult an attorney who can provide you with legal advice on premarital agreements. In theory, you are not legally obliged to hire an attorney.
But without legal counseling, a pre-marital agreement could create more issues than solving them if not done correctly. You do not need the best family law attorney in San Francisco or Los Angeles who deals with stars and celebrity divorces. However, you would be wise to consult an attorney to learn what steps you need to take legally. Premarital agreements do not always have to be expensive and can often be handled by a general practicing attorney.
© 2006 Child Custody Coach About the AuthorChild Custody Coach provides child custody information and help. "How to Win Child Custody" is a custody strategy guide. Custody Match help you find a divorce lawyer, family law attorney, or child custody attorney.
Before getting married, many couples are now choosing to reach a pre-marital agreement. Premarital agreements also know as pre-nuptial or ante-nuptial agreements, once seemed to be reserved to Hollywood stars or Celebrities for Hollywood divorces or Celebrity divorces.
However, over the last decade it became more and more common for the common spouse to sign a premarital agreement contract with his/her future spouse, especially on the West Coast. Most people believe that premarital agreements are only meant to allow both parties to keep their own assets if the marriage fails.
But a premarital agreement can also provide children the right to receive the assets, or a large part of them, if both parents pass away. One of the main purposes of a pre-marital agreement is to work out all the divorce details rather than leave these potential issues unresolved. The increasing number of pre-marital agreements can be seen as an indicator that couples acknowledge that their marriage has a fifty percent chance of ending up in divorce and prefer to reach an agreement prior to marriage in order to prevent future disputes in the event of a divorce or dissolution of marriage. What makes a good pre-marital agreement? A pre-marital agreement covers wide arrays of aspects and it is important to determine what you should and should not include in your pre-marital agreement.
First, a pre-marital agreement should contain a detailed pre-marital history and family circumstances. This can be very important when one party is marrying for a second or third time and has other children. Provisions should be made to consider the past history of one party.
Second, there must be a thorough written disclosure of both parties' assets and liabilities brought into the marriage.
Third, the agreement must stipulate how earnings during the marriage period will be shared in case of a divorce. Eventually, the parties should be given enough time to thoroughly review the agreement. This is why couples are seeking to be more advised about pre-marital agreements and are reaching pre-marital agreements well in advance of the wedding.
Do I need an attorney to make a pre-marital agreement? If you decide to reach a pre-marital agreement with your future spouse you may want to consult an attorney. Even though a pre-marital agreement may not look so complicated on its face and you think you could save some money by doing it yourself it could be helpful to at least consult an attorney who can provide you with legal advice on premarital agreements. In theory, you are not legally obliged to hire an attorney.
But without legal counseling, a pre-marital agreement could create more issues than solving them if not done correctly. You do not need the best family law attorney in San Francisco or Los Angeles who deals with stars and celebrity divorces. However, you would be wise to consult an attorney to learn what steps you need to take legally. Premarital agreements do not always have to be expensive and can often be handled by a general practicing attorney.
© 2006 Child Custody Coach About the AuthorChild Custody Coach provides child custody information and help. "How to Win Child Custody" is a custody strategy guide. Custody Match help you find a divorce lawyer, family law attorney, or child custody attorney.
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