MEDIATION AND POST-NUPTIAL AGREEMENTS
Mediation is an option for couples considering a Post-Nuptial Agreement. We’ve heard of Prenuptial Agreements. A prenup is an agreement couples enter into before marriage. The prenup spells out what happens in the event of a divorce. A prenuptial will contain language about division of assets, alimony and usually each party will keep the assets they came into the marriage with. But what is a post-nuptial agreement?
A Connecticut Post-Nuptial Agreement is a binding contract between spouses about rights to marital property should their marriage end in divorce or death. Couples enter into post-nuptial agreements after they are married. Similar to a prenup, the post-nuptial contains an agreement about what they will do with their assets if they divorce. Many couples come into a marriage with very little so there is less need for a prenuptial agreement. During the marriage spouses can accumulate significant wealth and incomes increase so a post-nuptial is appropriate.
THE INTENT OF A POST-NUPTIAL AGREEMENT
The intent of both a prenuptial and a post-nuptial agreement is for the couple to decide ahead of time how they will handle divorce. People are not at their best emotionally or logically when they are divorcing. People choose to have these difficult discussions when they are still in love and thinking clearer rather than when the relationship is ending and they are stressed with a pending divorce.
IS MEDIATION THE RIGHT CHOICE WHEN YOU WANT A POST-NUPTIAL AGREEMENT?
When couples are deciding to divorce they ask – should we mediate or litigate? Should we use one impartial third party to work with us or each have our own lawyer. Generally, one attorney prepares the agreement. The agreement goes to the other attorney to review with the other spouse. Then the agreement goes back and forth with changes and revisions until the husband and wife agree on the language and ready to sign. It is costly using two separate lawyers during the negotiations. Using an impartial mediator to help you negotiate the terms of your post-nuptial agreement directly with your spouse will speed up the process and reduce costs.
HOW TO MAKE SURE YOUR POST-NUPTIAL AGREEMENT WILL BE ENFORCEABLE
Just like when you mediate a divorce or legal separation you always want to consult an attorney before signing any legal document including a post-nuptial agreement. Having a consultation with an attorney looking out for your interests is required. But you still save time and money using an attorney just for a final review rather than during the whole negotiation process.
A court will only enforce a post-nuptial agreement if the terms of the agreement are both fair and equitable at the time you signed it and not found to be unconscionable or one-sided at the time of the divorce.
ADDITIONAL REQUIREMENTS OF A POST-NUPTIAL AGREEMENT
- The agreement is made voluntarily.
- The agreement is made without any undue influence, fraud, coercion, or duress.
- Each spouse has been given full, fair, and reasonable disclosure of the amount, character, and value of their assets, jointly and separately held, and all of the financial obligations and income of the other spouse. Mandatory disclosure is a requirement.
A POST-NUPTIAL AGREEMENT MUST BE FAIR AND EQUITABLE
During divorce negotiations, each spouse says they want what is fair. But spouses often disagree on the definition of fair. A divorce mediator will help couples focus on each other’s needs and concerns, and the fairness of the process. A mediator will suggest looking at the big picture rather solely individual interests. The post-nuptial agreement, like a divorce agreement, must be found fair and equitable by the court. A mediator will help the couple focus on all the facts and circumstances of the marriage, their assets, and their intent to ensure the agreement is fair and equitable and enforceable by the court.
When deciding if a post-nuptial is fair and equitable, a court may consider various factors. A judge will look at the nature and complexity of the agreement’s terms. The extent of and disparity in assets brought to the marriage by each spouse will also be considered. The parties’ ability to read and understand the terms of the agreement is a factor. Also, important are the amount of time each spouse had to review the agreement and the spouse’s access to an attorney before they signed the final post-nuptial agreement.
If you have any questions or would like to speak to a divorce lawyer, family law attorney, or divorce mediator about a divorce or a post-nuptial agreement, please contact Maya Murphy, P.C. at (203) 221-3100 or via email at JMaya@Mayalaw.com. We offer free consultations to discuss any divorce or family law related matter.