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1) WHAT IS A PRE-MARITAL
AGREEMENT?
A pre-marital agreement may be
entered into by competent adults who are legally able to marry. The purpose of such an
agreement is to avoid the usual legal consequences of joining the estates of two parties
by marriage. Many people have an established estate, and/or established responsibilities
to prior family, which they would like to see protected from the new spouse and new
obligations. This can only be done by the consent of both parties to the marriage, and
with full knowledge of each other's financial situation.
2) WILL IT HOLD UP IN COURT?
It is important to understand that the enforceability of the agreement is the most
important concern, and sometimes compromises must be made to ensure enforceability. An
agreement that was made without full disclosure, or entered into without proper legal
advice, or under duress, will probably not hold up in court. You must be aware that such a
document will almost always be scrutinized by a court at the time it is enforced to
determine if it was fair at the time it was signed, whether the parties understood what
they were signing, and had proper legal advice.
3) WHEN SHOULD YOU MAKE A
PRE-MARITAL AGREEMENT?
To avoid the appearance of duress, the agreement should be done as far in advance of
the wedding date as possible, and before expensive preparations are made. Both sides
should have independent legal counsel to advise them. Remember, this is basically a
divorce settlement entered into before marriage, and, if done properly, could serve as the
basis of an uncontested divorce if the marriage ends, thus avoiding a costly legal battle
over these issues.
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