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Marital contracts: the key role of experienced legal counsel

Protecting the future.

In a nutshell, that is really what marital contracts -- either a prenuptial agreement, executed prior to marriage, or a postnuptial agreement, negotiated and signed after marriage -- are all about.

Another important feature of such contracts is this: to cement understandings or, to put it another way, to decrease uncertainty.

That can attach to many things in marriage and upon divorce, including what will constitute separate versus marital property; how savings, retirement and stock accounts will be handled; how real estate and personal property will be divided; and many other matters relating to the division of assets and liabilities.

"Whichever side of the coin you're on," as one commentator has noted in pointing out that some parties want to void a marital contract and others want to make sure it is ironclad when they execute it, respectively, enforceability is always a concern.

The general view is that, if due attention and formalities are given to such agreements, they will serve their intended purpose and be construed as fully enforceable.

As with most things in life, though, certainty in all instances is far from a sure thing. Marital contracts, like many others, are less than fool-proof vehicles and can be looked at with raised eyebrows and cynicism by judges for a number of reasons.

Those can include evidence that one of the parties falsified income and assets pursuant to negotiating such an agreement. Perhaps a party was taken advantage of while signing, being under duress or coerced in some manner. Maybe something as obvious as bad drafting was involved - that is, not signed, subject matter not sufficiently stated or careless errors throughout. Perhaps one or more provisions are flatly unconscionable or against public policy (e.g., "You will get nothing if you gain a single pound.").

Prenuptial agreements and postnups can be very effective legal instruments, provided they are carefully negotiated and written and comply with requisite legalities.

Consultation with and close help from a family law attorney with in-depth experience working with such documents can help ensure that such is the case.

Source: Forbes, "Five reasons your prenup might be invalid," Jeff Landers, April 2, 2013

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