Making an agreement with your current or soon-to-be spouse about what happens during a divorce or legal separation can help make the process run more smoothly for everyone involved. While you may make many different types of family agreements, there are three that commonly relate to divorce: prenuptial, postnuptial and legal separation.
Entering into any of these three legal agreements is a very serious matter, so you must fully understand the agreement terms and how that document could impact you negatively and positively prior to signing. Before you ink any type of family agreement, be sure to consult with an experienced attorney so you can confirm you fully understand the ramifications of what you are signing. In the meantime, it’s helpful to learn a little more about these three agreements and what they may mean.
Also known as a premarital agreement or prenup, the prenuptial agreement is a contract entered into by two people prior to their marriage. These were once considered to be for wealthy couples only, but these days, more people recognize that a prenup can help prevent a messy and expensive divorce battle down the road regardless of finances. If you have a small family business, for example, a prenup could help you protect it in the event of a divorce.
Generally speaking, the prenup will cover what would happen in the case of a divorce or a separation, such as who receives which assets, how retirement accounts will be handled, and how the parties will handle regular household finances and purchases. However, it is worth noting that, in New Mexico, issues such as spousal support, child custody and child support cannot be settled by a prenup.
Should a couple decide they want an agreement like a prenup after they are already married, they will create a postnuptial agreement instead. Like the prenup, this agreement covers what happens in the event of a divorce or separation, except when it comes to matters involving children of the marriage or spousal support.
Sometimes, a couple who are experiencing trouble in the marriage don’t want to divorce just yet, but they do want to separate in the legal sense. They also want to have an agreement in place that covers some of the issues that could arise from separating, such as who will stay in the family home or pay the mortgage. While the couple may not be divorced yet, the legal separation agreement still must be considered and handled with care. In many cases, the terms of those agreements become the terms of the divorce if the couple decides to do so later down the road.
There are many laws and rules when it comes to creating any of the three agreements above, so you must ensure any agreement you enter into with your spouse or future spouse is executed properly. If your agreement does not fulfill the requirements set out in state law, the court could find its terms to be invalid, and you will be back at square one.
One way to help ensure the agreement is upheld in court is by using an attorney to create it. An attorney will make sure the agreement covers all the necessary areas and is in compliance with all legal requirements. Both you and your partner should have your own separate attorneys so you each have guidance during this process. If you both use the same attorney, the court can question whether you or your spouse had unbiased, adequate legal representation and access to sound advice at the time the agreement was made.