Pre-Nuptial Agreements: Till divorce do us part

The gossip pages will always provide rich material for the divorce and family law blogs. This weekend was no exception.  Nicole Kidman wed this weekend, but before the ceremony, she and her new husband signed a pre-nuptial agreement.

A pre-nuptial agreement is a good way for parties to protect their assets prior to marriage and long before a divorce is even a consideration. These agreements are not something that only extremely wealthy need consider. I am asked to prepare pre-nuptial agreements by parties considering a second marriage, particularly when children are involved, and in cases where there is disparate wealth. With greater frequency, I am being asked to prepare these agreements where wealth is just a potentiality.

A prenuptial agreement is a contract made by the prospective spouses before the contemplated marriage. The agreement will commonly provide how property will be divided in the event of divorce or death, but it can cover many other issues in the marriage as well. For instance, pre-nuptial agreements can provide for how property will be acquired during the marriage; how it be will be classified for equitable distribution purposes (marital or separate property) in the event of divorce; how the parties’ estates will be handled if the marriage ends by death, and how (and if) maintenance (alimony) will be paid in the event if the marriage ends in divorce.

In Nicole Kidman’s case, “The papers give Keith just over  $US600,000 a year for every year they're together.”

“There's also a clause that allows Nicole to leave the marriage without giving a cent to Keith - an ex-cocaine addict - if he uses illegal narcotics or drinks excessively.”

In order to ensure that your pre-nuptial agreement will be found to be valid, you and your future spouse should each seek legal representation. One attorney cannot represent the two of you.  An experienced matrimonial attorney will be able guarantee that the agreement will be signed with the necessary formalities.  If your future spouse is also represented you will have some assurance against future claims that the agreement was procured as a result of fraud, undue influence, coercion or duress. In addition, you should be prepared to make full disclosure of your net worth. Lastly, you should not spring the pre-nuptial agreement on your soon to be spouse at the very last minute. Plan on having the agreement signed and in place in advance of the wedding.  

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