As unromantic as it may sound, a marriage can be compared to a contract, with two people coming together and agreeing to form a partnership under certain terms. In some cases, when couples are contemplating marriage and even after they are married, they may enter into additional agreements to ensure their financial interests are secure in the event of a divorce. There are many reasons why couples may choose to enter into these prenuptial and postnuptial agreements, and there are numerous other concerns that they have to keep in mind when executing them. One important aspect of both kinds of agreements is the legal need for all parties to be aware of the assets at stake.
Financial disclosures are a key requirement in determining the enforceability of a prenuptial agreement. One of the elements a court looks at in determining that the contract is enforceable is if the party challenging the agreement was provided with a fair and reasonable disclosure of the other party’s assets or financial obligations. While there may later be a disagreement as to what constitutes a fair and reasonable disclosure, it is safe to say a complete disclosure of all assets owned, even partial interests, and all debt owed would satisfy this requirement. Often, the financial disclosure submitted by each party is attached to the prenuptial agreement as an exhibit or addendum to avoid questions of what was and what was not disclosed later on.
With postnuptial agreements, financial disclosure can be just as important. A couple that agrees to sign away rights to property or other assets after they are already married should not assume that they know what they own individually or jointly. If one person suggests a postnuptial agreement, each party should seek a complete financial disclosure of all assets, even those that may be considered premarital property. Having an accurate picture of all the assets and debts at play can affect the negotiations that take place. In agreeing to distribute property a certain way after the marriage, parties should also remember that a court would still look to see if the agreement was unconscionable. If either party fraudulently misrepresents their financial assets, shields marital assets, or misrepresents their intentions in order to get the other to agree to an unequal financial distribution, a court is likely to find the agreement unconscionable.
In signing either agreement, both parties need to consult with an attorney and any financial advisors necessary to make a knowledgeable and voluntary decision.
Contact an Experienced Family Law Attorney
If you are considering entering into a prenuptial or postnuptial agreement and would like to find out how either agreement may affect your rights, contact our dedicated DuPage County family law attorneys to learn how we can be of assistance in your case.