Reputable Legal Advocates Protecting Your Spousal Rights
Marital agreements are important tools for protecting a marriage, as both prenuptial and postnuptial agreements allow spouses to set forth terms about asset division and protection. It is advisable to consult an experienced marital agreement attorney to ensure your rights and interests are being addressed (and protected) by the legal contract. Our team at Bamberger & Brancato, PSC have a breadth of professional experience navigating Kentucky’s family law system. In fact, Attorney Ronald J. Bamberger has been practicing for 50 years, and Attorney Frank A. Brancato has been practicing law for 40 years. They bring significant knowledge and skill to the firm and have a great reputation among the legal community. As a result, you can trust that they will guide you effectively through the marital agreement process, from drafting to signing to even modifying.
What Does a Prenuptial Agreement Do?
A prenuptial agreement, also called a premarital or antenuptial agreement in Kentucky, is a legal contract signed by prospective spouses prior to marriage that determines how the couple's assets and debts will divided in the case of divorce or death. Note that while they are signed before marriage, prenuptials become valid only after the couple is legally married.
A prenuptial can help to provide spouses with more certainty and security about their financial situation, as they can address terms to protect a business, property, or other asset owned prior to marriage. In situations when a potential spouse has children from a previous relationship, they may choose to sign a prenup to protect their children’s right to inherit the property brought to the new relationship. Most commonly, couples will want to establish in a prenup that both spouses are entitled to a share of property gained during the marriage, particularly if one spouse remains in the household as a homemaker for the children while the other spouse works.
Kentucky prenuptial agreements may also establish:
- each spouse's rights to use, sell, buy, transfer, or otherwise deal with property owned by either spouse or the couple jointly;
- what happens to each spouse's retirement or pension benefits upon divorce or death of a spouse;
- whether a spouse receives alimony upon divorce and the amount and duration; and
- whether the terms of the agreement take effect upon divorce, death, or both.
What Constitutes a Valid Agreement?
To be valid, a prenuptial agreement in Kentucky must be in writing and voluntarily signed by both spouses. Courts will not enforce any oral promises if they are not part of the written agreement.
Be aware that a valid prenuptial agreement cannot be tainted by duress, mistake, or fraud. That is, each spouse must fully and honestly disclose their assets to the other spouse at the time the agreement is signed, and they should ensure that all their assets and debts are listed correctly.
It is legal for a court to invalidate (or throw out) a prenup if it is found that either spouse was under duress when it was signed (one spouse physically forced the other or threatened the other to sign). However, note that a threat that one spouse won’t marry the other until they sign the prenup does not constitute illegal duress, and this is not enough of a reason for a court to invalidate an otherwise legal agreement.
A court may also invalidate a prenup if it discovers that either spouse was suffering from a mental illness, mental deficiency, intoxication, or some other mental incapability preventing them from understanding the agreement when it was signed. If a spouse lied about their financial status to the other spouse or otherwise committed fraud to convince the other spouse to sign the agreement, the judge may also invalidate the prenup.
Finally, a valid prenuptial agreement must not be unconscionable. This means that the agreement cannot be so unfair that it would be unjust for the court to enforce it. However, just because an agreement gives most of the assets or property to one spouse does not necessarily mean a judge will find it unconscionable.
Similar to the process of validating an agreement, a couple can also revoke a prenup by committing their desire to cancel the prenuptial agreement in writing and signing it.
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What Is a Postnuptial Agreement?
While prenuptial agreements are the more common contract, couples also have the option to sign postnuptial agreements. This is common if a couple wants to change their prenup after they are married. A postnuptial agreement can address similar terms to a prenuptial agreement, except the contract is signed after the couple is legally married.
Contact Bamberger & Brancato, PSC for Legal Guidance Today
If you have legal questions about signing a marital agreement or modifying one, do not hesitate to contact Bamberger & Brancato, PSC for legal guidance. Our legal team has decades of professional experience helping spouses and parents through the family legal system. If you are planning to sign either a prenuptial or a postnuptial marital agreement, our attorneys can help you prepare your needs and interests to be addressed by the contract and ensure that your rights as a spouse are being protected. It is best to have a lawyer take a look at your contract to make sure you are not signing anything contrary to your interests.
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