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Is a prenup or postnup more effective in divorce?

| Feb 17, 2021 | Family Law

Divorce is never on the horizon, especially at the start of a marriage. This may explain why some couples hold off on memorializing agreements they make about splitting money and property until they say their vows.

Both prenuptial and postnuptial agreements are legal documents that set out the terms a couple chooses to divide money, property and debt should they divorce. Deciding these things before divorce may make the process go smoother. However, which document holds up better under a court’s scrutiny?

The timing of the document matters

A prenuptial or antenuptial agreement predates the legal date of the marriage. It has become the more traditional route couples take to set out the terms of a split. A couple may create a postnuptial agreement after their marriage. There is no law on the books that renders a postnup less effective.

The reasons behind a postnuptial agreement

When a couple has a postnup, the factors that led to its execution may become a factor if a disagreement arises. If the couple executed the agreement at a low point in their marriage, one spouse may claim he or she felt forced into it. A judge may reexamine the document and throw it out, especially if the terms favor one spouse. Neither spouse may file for divorce within two years of signing a postnuptial agreement unless the document proves fair and equitable.

The terms of a marital agreement

Whether a couple goes the route of hammering out a nuptial agreement before or after they wed, the document may only address specific aspects of their married life. For instance, issues regarding child custody, support or visitation are not permissible in a nuptial agreement.

Having a pre or postnuptial agreement may help ensure a less contentious divorce. If the terms are fair to both spouses, either should hold up in court.

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