| Kirk
Staley
Prenuptial Agreements and Divorce Settlement Agreements:The
Presumption of Fairness
Introduction
If you are considering a prenuptial agreement
in advance of a marriage, or if you are contemplating final decisions
in regard to a divorce settlement agreement, you may have some
questions regarding whether or not your should sign such a document.
In a more serious scenario, perhaps you have executed either a
prenuptial agreement or a divorce settlement agreement which you
now believe is unfair. You are wondering if there is some way
to get out of either a prenuptial agreement or a divorce settlement
agreement because you feel one or another of these agreement is
not fair.
In this article, we provide you with some basic
information about both prenuptial and divorce settlement agreements
and the arguments about the fairness of such agreements once they
have been executed.
Prenups and Settlement Agreements: An Overview
Before turning to the matter of the fairness of
either a prenuptial agreement or a divorce settlement agreement,
it is wise for you to have a basic understanding of each of these
types of documents. By having a basic understanding of these documents,
you will have a greater feeling for what is involved in entering
into such an agreement.
In generally terms, a prenuptial agreement is
an agreement executed by two people who are contemplating a marriage.
Through a prenuptial agreement, the couple is setting forth how
property will be divided should the marriage end in a divorce.
In most instances, when a prenuptial agreement
is entered into before a marriage, one party to the couple is
wealthier than the other. The concept behind a prenuptial agreement
is to protect the person who enters into the marriage with a greater
amount of assets.
Some prenuptial agreements even contain clauses
that prevent a person from obtaining any property if that person
commits adultery during the course and term of the marriage. With
that said, the terms of different prenuptial agreements can be
very … different.
As opposed to a prenuptial agreement that attempts
to set forth the property rights of a couple prior to a marriage,
a divorce settlement agreements work to set forth the property
rights (and debt obligations) of a couple following the end of
a marriage.
Pursuant to a divorce settlement agreement, the
parties agree as to what property each partner to the marriage
will possess after the marriage. In addition, the divorce settlement
agreement will deal with allocating the debt of the marriage between
the parties as well. Finally, a divorce settlement agreement will
deal with such matters as maintenance (previously known as alimony),
child support and other financial issues.
The Principle: Know What You Sign … Before
You Sign
As mentioned previously, in a good number of instances,
a person who executes either a prenuptial agreement or a property
settlement agreement ends up objecting to the agreement once it
has been signed because that person contends that the agreement
“is not fair.”
Generally speaking, an argument about fairness
after a prenuptial or divorce settlement agreement is signed will
go absolutely nowhere. If a person is a competent adult who has
had time to review a particular agreement, including these two
types of agreements, it is presumed that the parties understand
the terms and conditions of such an agreement.
In short, an argument that an agreement is unfair
-- after it has been signed -- simply is not going to fly. The
principle that you need to know and understand what you have signed
before you sign an agreement is firmly rooted in the legal systems
of many countries the world over.
The one exception to this rule is if a person
was deceived about the contents of an agreement. However, and
again, a person will really have to show that he or she was completely
duped and that there was as sound reason as to why the person
ended up being duped by the terms and conditions of an agreement.
In addition, if a person was forced into signing
either a prenuptial agreement or divorce settlement agreement,
that person may have some chance of contending that the agreement
is not fair or that enforcing the agreement is not fair after
it has been signed.
In short, you need to understand what you sign
before sign any document
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Overview
