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Prenuptial Agreements and Divorce Settlement Agreements

By: Kirk Staley, Fri Oct 13th, 2006 06:58:06 PM

Prenuptial Agreements and Divorce Settlement Agreements: The Presumption of Fairness

Introduction

If you are considering a prenuptial agreement in advance of a marriage, or if you are contemplating final decisions in regard to a divorce settlement agreement, you may have some questions regarding whether or not your should sign such a document. In a more serious scenario, perhaps you have executed either a prenuptial agreement or a divorce settlement agreement which you now believe is unfair. You are wondering if there is some way to get out of either a prenuptial agreement or a divorce settlement agreement because you feel one or another of these agreement is not fair.

In this article, we provide you with some basic information about both prenuptial and divorce settlement agreements and the arguments about the fairness of such agreements once they have been executed.

Prenups and Settlement Agreements: An Overview

Before turning to the matter of the fairness of either a prenuptial agreement or a divorce settlement agreement, it is wise for you to have a basic understanding of each of these types of documents. By having a basic understanding of these documents, you will have a greater feeling for what is involved in entering into such an agreement.

In generally terms, a prenuptial agreement is an agreement executed by two people who are contemplating a marriage. Through a prenuptial agreement, the couple is setting forth how property will be divided should the marriage end in a divorce.

In most instances, when a prenuptial agreement is entered into before a marriage, one party to the couple is wealthier than the other. The concept behind a prenuptial agreement is to protect the person who enters into the marriage with a greater amount of assets.

Some prenuptial agreements even contain clauses that prevent a person from obtaining any property if that person commits adultery during the course and term of the marriage. With that said, the terms of different prenuptial agreements can be very … different.

As opposed to a prenuptial agreement that attempts to set forth the property rights of a couple prior to a marriage, a divorce settlement agreements work to set forth the property rights (and debt obligations) of a couple following the end of a marriage.

Pursuant to a divorce settlement agreement, the parties agree as to what property each partner to the marriage will possess after the marriage. In addition, the divorce settlement agreement will deal with allocating the debt of the marriage between the parties as well. Finally, a divorce settlement agreement will deal with such matters as maintenance (previously known as alimony), child support and other financial issues.

The Principle: Know What You Sign … Before You Sign

As mentioned previously, in a good number of instances, a person who executes either a prenuptial agreement or a property settlement agreement ends up objecting to the agreement once it has been signed because that person contends that the agreement “is not fair.”

Generally speaking, an argument about fairness after a prenuptial or divorce settlement agreement is signed will go absolutely nowhere. If a person is a competent adult who has had time to review a particular agreement, including these two types of agreements, it is presumed that the parties understand the terms and conditions of such an agreement.

In short, an argument that an agreement is unfair -- after it has been signed -- simply is not going to fly. The principle that you need to know and understand what you have signed before you sign an agreement is firmly rooted in the legal systems of many countries the world over.

The one exception to this rule is if a person was deceived about the contents of an agreement. However, and again, a person will really have to show that he or she was completely duped and that there was as sound reason as to why the person ended up being duped by the terms and conditions of an agreement.

In addition, if a person was forced into signing either a prenuptial agreement or divorce settlement agreement, that person may have some chance of contending that the agreement is not fair or that enforcing the agreement is not fair after it has been signed.

In short, you need to understand what you sign before sign any document.

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