Pre-nuptial and post-nuptial agreements are intended to ensure that important items of interest avoid standard distributions of divorce law. Traditionally, the prenuptial, or premarital agreement – an agreement established before marriage vows are exchanged – protect against “gold digging”.
Other reasons included protection of special assets, family property and inheritance. If one of the spouses has a high debt load or business interest, then a prenuptial may be helpful to safeguard theses concerns. The prenuptial agreement divides shared property, real estate and debts upon divorce or death. Prenups can also establish spousal support or maintenance.
A prenuptial is considered valid when it is;
- written and signed
- based on full financial disclosure before signing
- “just and reasonable”
- “truthfully represented” to both parties and
- the result of both parties having access to separate legal counseling before signing
Agreements After Marriage
Postnuptials, antenuptials or postmarital agreements are entered when someone is already married. These are established primarily to protect financial and business interests from the vagaries of political judges. It must be established in “good faith”. Postnuptials are considered carefully by courts, since they override marital rights that naturally occur once marriage vows are made. Postnuptials are individual attempts to override the regular divorce law provisions. Courts still reserve the authority to modify prenuptials and postnuptials. Without pre or post-nuptials, normal divorce law applies.
A “marital separation agreement”, also called a “property settlement agreement” provides for property division and the division of assets. “Marital property” consists of property acquired during the marriage and used regularly by both parties. “Separate property” may include items acquired by gift or inheritance. If one party exercises “exclusive dominion and control” over the property, then it may qualify as “separate property”.
Alabama is an “equitable distribution” state with a three step process for determining property division:
- determination of marital property
- valuation of marital property, and
- division of property in a fair and equitable fashion
There is no fixed standard for division of property, which is based on particular facts and circumstances of the case.
