The Faulstich Law Firm P.C.
130 S. Bemiston
Suite 604
Clayton, MO 63105
(314) 260-7823
The Faulstich Law Firm P.C.
130 S. Bemiston
Suite 604
Clayton, MO 63105
(314) 260-7823
The Faulstich Law Firm. St. Louis Family Law Attorneys.
My Blog
Posted on January 13, 2014 at 3:12 PM |
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*No attorney can guarantee the enforceability of a prenuptial
agreement.* Some factors that increase the chances of enforceability
are: (1)
Time: Giving the spouse that is not asking for
the prenuptial agreement more time to consider the agreement. If possible, this
should be done before an engagement. If that is not possible, then as closely
after as possible. The more time the spouse not asking for the prenuptial
agreement has, the less the agreement looks like it may have been made under
duress. After the invitations have been sent out and deposits have been paid,
sometimes embarrassment and financial concerns of the risk of the wedding
proceeding can constitute sufficient duress to void a prenuptial contract. All
things considered however, contracts that were given to the non-requesting
party only days before the wedding have been upheld. However, this is not the
best practice and decreases likelihood of enforcement immensely. (2)
Negotiation: If the other spouse has time to
negotiate more favorable terms and actually does negotiate more favorable
terms, the agreement is more likely to be enforced. (3)
Representation: If the other party has
representation, the other party is more likely to understand the repercussions
of the agreement, and therefore the agreement is more likely to be enforced. |
Posted on January 13, 2014 at 3:00 PM |
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Yes, and this can actually increase the likelihood of
enforcement in some situations. However, once a prenuptial agreement is changed
or amended, typically it is after the marriage. Therefore it would then be
called a post-nuptial agreement. A post-nuptial agreement is like a prenuptial agreement in
some ways. However, even if you never entered into a prenuptial agreement,
couples can still enter into a post-nuptial agreement. |
Posted on January 13, 2014 at 2:58 PM |
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Technically, yes, you can agree to custody matter or support
in a prenuptial agreement. The more important question here, however, is about
enforceability. Will a prenuptial agreement that has an agreement as to custody
and support be enforced? The answer is probably not. The entire agreement may
not be voided if there are other aspects to it and there is a severability
clause, but agreements as to custody and support have routinely been voided by
the Courts. The reasoning behind the non-enforcement of custody and
support has two main facets: (1) best interests of the children involved and
(2) ever changing life circumstances. A typical custody or support matter that
was decided usually during the pendency of a divorce, is always modifiable if
there is a significant change in circumstances. The number of ways in which
this requirement can be met are as numerous as the stars. Someone could change
jobs for instance. This could mean both a change in salary and a move to a
different state. The custody agreement made when both parents are local will
look very different from one that is agreed to when one is local and one lives
1,000 miles away. The support agreement may change because the salary of the
party paying support changed or in the alternative, if the parent receiving
support changed. The calculation is dependent upon the relative salaries of
each parent. Agreements of support and custody necessitate change in order to
accommodate the best interests of the child and adjust to the changing
circumstances of their parents and their lives. This is why a non-dynamic
custody agreement memorialized in a prenuptial agreement will rarely be
enforced. |
Posted on January 13, 2014 at 2:54 PM |
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Age: This indicator plays into the indicators below. The
older someone is, the more likely it is that they will have had a previous
marriage, substantial assets that are individually owned, or a business that
they own. Considering this economy however, there are a lot of younger
entrepreneurs out there in the business world, so age is not always an
indicator of how likely you are to need or want a prenuptial agreement. Previous Marriage: Someone typically might think that a
person with a previous marriage just wants a prenuptial agreement to save
themselves some of the hassles of another divorce proceeding. There are other
factors at play here however and a number of reasons that a previous marriage
could affect the financial situation of the next marriage. Substantial Assets: The best use for a prenuptial agreement
is for protecting assets that were owned before marriage. The more that you
have to protect, the more sense it makes to have a prenuptial agreement in
place so that a future spouse cannot try to take assets that were earned before
the marriage. The rules of commingling are incredibly complex at
times—commingling being a situation in which assets acquired before a marriage
are mixed with marital funds. Additionally, many people find, much to their
chagrin, that the rules of what is marital and what is separate property are
not as intuitive as one might like. Business: If you are a business owner, you probably have a
lot of time and effort put into the business. Because you work at the business,
you probably consider it something akin to a job. In truth, a business is an
asset. There are ways in which this asset can become marital. Sometimes this
can mean that during the pendency of a divorce the function of a business can
be disrupted because the opposing spouse lays claim to part of the business.
Again, the rules here can be far less than intuitive. A prenuptial agreement
can protect this asset. |