Often referred to as a “prenup”, a prenuptial agreement is a contract signed by the parties before they enter into the contract of marriage, which determines their rights in the event of a divorce. Historically, prenups were used by wealthy spouse’s looking to protect their estate from a less successful bride to be. This is no longer the case, with prenups becoming more common among Alabama newlyweds from all walks of life. The most common terms of a prenup focus on the division of property in the event of divorce or death of one of the parties. Often, parties attempt to settle other issues such as child custody, child support and alimony in a prenuptial agreement. Even if the parties attempt to settle issues of child support and custody in a prenup, in the event of a divorce, the court would still have to determine that the custody and visitation agreement are in the best interests of the minor child and comply with Alabama’s Child Support Guidelines. In other words, such provisions are often unenforceable, even if agreed upon in advance in a prenuptial agreement. For a prenuptial agreement to be enforceable, Alabama law requires that both parties fully disclose all of their existing assets and liabilities to one another. In drafting prenuptial agreements, the prenuptial agreement attorneys at Boles Holmes White LLC prefer to list all assets in the agreement itself, so it is clear what has been disclosed. This can be done in the body of the prenuptial agreement, or as an exhibit to the prenup. It is also in the best interest of the parties in the formation of a prenuptial agreement for both parties to be represented by separate counsel. In the event of a divorce, the domestic relations court can review the agreement and make a determination that it should not be enforced because the parties were not in equal bargaining position and because all debts and liabilities were not fully disclosed. If both parties are represented by their own family law attorney, it greatly enhances the possibility of the court enforcing the terms of the prenuptial agreement. If you are interested in drafting a prenuptial agreement, or if your future spouse has asked you to enter into a prenuptial agreement in Alabama, call our prenuptial agreement attorneys at Boles Holmes White LLC to guide you through the process to properly protect yourself. Likewise, if you signed a prenuptial agreement and you would like to know if it is enforceable, the divorce attorneys in our Birmingham office can provide you such an opinion.
The only major difference between a prenuptial agreement and a postnuptial agreement is that one is signed prior to the marriage, while the other is signed after the wedding has already occurred. While less common than prenuptial agreements, they have become more common in marriages in which significant financial events have occurred after the couple marries. One common example is where a business if formed after the parties marry, and the principals of the business want to make sure that the business is an ongoing entity, without interference from the spouse, in the event of a death or divorce. It is also common for a spouse that learns of infidelity on the part of the other spouse to request a postnuptial agreement before they agree to stay in the marriage. Just like for a prenuptial agreement, courts will only enforce a postnuptial agreement if the parties fully disclose their financial condition to one another prior to entering into the contract. Also, to protect the documents enforceability, it is always best if both parties are represented by separate counsel in the creation and execution of the postnuptial agreement. If you are interested in creating a postnuptial agreement, contact the Birmingham domestic relations attorneys at Boles Holmes White LLC to assist you in the negotiation and creation of your postnup agreement.