Prenuptial, Postnuptial and Cohabitation Agreements

It is common knowledge that divorce can be messy, expensive and unpredictable. With divorce rates looming at roughly 50 percent for first-time marriages and 60 percent for second marriages, it is easy to see why people contemplating marriage often choose to enter into an agreement to determine their respective rights and responsibilities if and when the marriage ends. These agreements are called premarital agreements, also known as prenuptial agreements, antenuptial agreements or “prenups.”

Premarital agreements are particularly important for protecting the assets and income of high net worth individuals. Since premarital agreements can affect how property of married persons will be disposed of upon death, marrying individuals with children from a prior marriage may have a particular need for a premarital agreement.

Premarital agreements are designed to maximize a couple’s ability to negotiate and determine in advance what the financial consequences of their marriage will be, both during the marriage and in the event of death or divorce. Premarital agreements allow individuals to take control over their own economic futures rather than letting the default rules control or leaving their futures up to an unpredictable court system.

The law specifically allows for premarital agreements, but there are many traps for the unwary that can result in a premarital agreement being wholly or partially invalidated. The law surrounding premarital agreements is complex and constantly evolving. In order to ensure that a premarital agreement will withstand a future challenge, it is critical that the drafting attorney be familiar with the most recent developments and take extreme care in the drafting of the agreement. This is particularly crucial when the financial stakes are high. The attorneys at Jaffe and Clemens are experts in drafting premarital agreements that will achieve the client’s goals and stand up to future challenge.

It is important that premarital agreements be negotiated, finalized and signed as far in advance as possible before the wedding. Anyone who is getting married and considering a premarital agreement should contact a family law attorney at the earliest opportunity.

Not every eventuality can be anticipated before marriage, and it sometimes happens that spouses wish to enter into a financial agreement after marriage, also known as a postnuptial agreement. Postnuptial agreements have special requirements, and generally are harder to defend than premarital agreements because married persons have special fiduciary duties to each other. A married person contemplating entering into a postnuptial agreement should hire highly skilled lawyers such as those at Jaffe and Clemens.

Today, many couples choose to defer marriage, or not to marry at all, and live together instead. Many do not realize that they can take on financial obligations simply by virtue of their living arrangements. For this reason, particularly when at least one of the persons is wealthy, it makes sense to enter into a written agreement that defines the financial terms of the relationship and eliminate the possibility of any unintended financial

consequences. Such agreements, known as “cohabitation agreements,” help to minimize the risks and uncertainty that can result if the relationship ends. Jaffe and Clemens attorneys are skilled and experienced in the preparation and negotiation of cohabitation agreements.