Q: In a premarital agreement, can you make a specific clause that only takes effect if one of the parties files for divorc
A: Yes it can be done but just like anything else it needs to be properly drafted. I suggest hiring a good lawyer to represent you and if the other party isn't represented make sure they have a lawyer on their side as that is how most of these prenuptial Agreements are invalidated.
A: To be valid, a premarital agreement must 1. make full disclosure of a parties financial setting ( including the value of all real estate and businesses in which a party has an interest); 2. must be presented to the other party sufficiently in advance of the wedding date so that they had the opportunity to review all of the terms to ensure that they understood everything set forth in the document; 3. the party being presented with the document has to have the opportunity to retain independent counsel to review the terms of the agreement with them before signing it; 4. it's terms cannot be unconscionable ( meaning placing the other party in a worse financial setting than they were in before they entered into the agreement; and 5. the agreement cannot control issues pertaining to custody of children or their support.
What an agreement can control, are 1. whether alimony will be paid in the event of a divorce and if so, the agreement can spell out the amount to be paid. The agreement can also spell out what assets are to be divided and how those assets are to be divided ( ie assets that remain in individual name vs assets placed or acquired in joint name). The agreement can also address estate issues, including waiver / limitations on the claims that can be made against the other party's estate in the event of death.
The critical part to the drafting of a premarital agreement and its potential future enforcement ( at the time of a divorce or at death) is the preparation work that goes into the creation of the document and making sure that you have made complete and accurate disclosure of your total financial setting and your income picture. The 2nd critical element is the timing of the presentment of the document to your intended bride ( or groom). I like to have at least 5-6 months advance time to start the preparation, starting with a letter or email to the other party, putting her / him on notice that I have been retained to prepare this document and laying out a framework of what will be dealt with in the document so that no one can claim later on that he / she did not know it was going to be presented or what it would address. I would also ensure that the other side met with an independent lawyer to review the terms with them and if needed, my client would advance payment for the other party to meet with an independent lawyer.... even if the lawyers advice is not to sign it. By signing it, they cannot later claim that they did not understand the legal significance of the terms.
Lastly, I tell my clients that they are getting married and hopefully for the remainder of their life to this person and if they treat this person unfairly in the agreement, it sets a very bad tone for the duration of their lives together. The idea is to create an agreement that is fair given your financial setting and to avoid the other person from looking to litigate to try and set the agreement aside.
A: Thank you for your question. The purpose of a premarital agreement is to protect assets and to make clauses go into effect upon a specific event, such as filing divorce. So the short answer to your question is yes. Typically, not just the filing of a divorce complaint will trigger the agreement. Other things such as separation can also trigger the agreement. I would suggest that you reach out to a family attorney to schedule a consultation so all of your questions can be answered.
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