When two people decide to marry, they may enter into contracts establishing each person’s property rights and addressing other concerns if the marriage must come to an end. The specific name for this contract will depend on the date it was signed. An agreement forged before marriage is a prenuptial (or antenuptial) agreement and one struck after the marriage is a postnuptial agreement.
Prenuptial and postnuptial agreements can undoubtedly help eliminate disputes over property and finances and can reduce the time and cost of divorce in some cases, but the agreements are not always easy to reach. There may be many complicating factors such as possible business and personal property rights that make it difficult for individuals to determine how to tailor their agreements.
Do you need help with a prenuptial or postnuptial agreement in Memphis? Be sure to hire a family law attorney who has experience handling prenuptial and postnuptial agreements, and who knows how to craft an agreement that will protect what is important to you while respecting the rights and needs of your spouse. Your lawyer will listen to you, learn about your situation and needs, and will work with you to craft an agreement that protects your interests while allowing you to live happily with your spouse.
Shannon A. Jones, Attorney at Law has over 20 years of experience helping people with family legal matters, including pre and postnuptial agreements in Tennessee. Call (901) 390-9041 or contact us online to set up a free consultation.
Tennessee Code § 36-3-501 governs the enforcement of antenuptial agreements and provides that any antenuptial or prenuptial agreement entered into by spouses concerning their property before the marriage will be binding upon any court having jurisdiction over the spouses and/or the agreement then it is determined to have been entered into by the spouses “freely, knowledgeably and in good faith and without exertion of duress or undue influence upon either spouse.”
People may consider a prenuptial agreement for various reasons. Some of the most common reasons people create prenuptial agreements include one or both spouses owing significant debt, owning valuable real or personal property, having been married before, or already having children from a prior marriage or other relationship.
Prenuptial agreements are also common when one spouse is much wealthier than the other. Prenuptial agreements are largely intended to protect the property of spouses before they marry, and usually specifies actions concerning the division of accounts, maintenance of life insurance, and property rights as well as how property will be distributed in the event of death, separation, or divorce.
Some of the most commonly included issues in most prenuptial agreements include distinctions between separate property and marital property, protection against a spouse’s debts, provisions relating to children from prior relationships, estate plan wishes, directions for property distribution, and responsibilities relating to separate businesses, retirement benefits, income tax concerns, household bills, joint bank accounts, investments, savings contributions, and the settlement of potential disagreements. Some prenuptial agreements may require spouses to enter mediation or arbitration to resolve disputes.
A postnuptial agreement is largely the same as a prenuptial agreement with the only difference being the date it was signed. Postnuptial agreements frequently relate to many of the same issues as prenuptial agreements.
Couples often decide that they need postnuptial agreements after recognizing that they might have property concerns in their marriage. One of the most common reasons for a postnuptial agreement is specifically to identify how property should be distributed in the event of a divorce or a spouse’s death.
Postnuptial agreements could also address common divorce issues such as asset division and child custody, but they cannot contain child support provisions. Some postnuptial agreements are forged specifically to identify the rights and obligations of a spouse in the event of a divorce.
In Bratton v. Bratton, 136 S.W.3d 595 (Tenn. 2004), the Supreme Court of Tennessee held that “postnuptial agreements are valid so long as there is adequate consideration for the agreement, it is knowledgeably entered into, and there is no evidence of fraud, coercion or duress.” While the marriage itself can be viewed as adequate consideration for a prenuptial agreement to be enforceable, the same conclusion is not afforded to postnuptial agreements as the Supreme Court of Tennessee found that the wife’s promise in Bratton “was more akin to coercion, in that she threatened to leave him if he did not sign the agreement,” and the agreement would be invalid due to coercion and duress even it did constitute adequate consideration.
What Is Equitable Distribution?
Tennessee Code § 36-4-121(a)(1) establishes that in all actions for divorce or legal separation, the court can equitably divide, distribute, or assign marital property between the parties without regard to marital fault. An equitable distribution state simply means that after the property has been classified as marital or separate, a court must divide marital property equitably, which does not necessarily mean an equal division of property.
Under Tennessee Code § 36-4-121(c), the court must consider all relevant factors when making equitable division of marital property, including the duration of the marriage, the age, health, and financial needs of each of the parties, tangible or intangible contributions by one party to the education, training or increased earning power of the other party, the relative ability of each party for future acquisitions of capital assets and income, the contribution of each party to the acquisition, preservation, appreciation, depreciation or dissipation of the marital or separate property, the value of separate property, the estate of each party, economic circumstances of each party, tax consequences, Social Security benefits available to each spouse, and any other factors necessary to consider the equities between the parties.
What Is Considered Marital Property?
Tennessee Code § 36-4-121(b)(1)(A) provides that marital property means all real and personal property acquired by either or both spouses during the course of the marriage up to the date of the final divorce hearing and owned by either or both spouses as of the date of filing of a complaint about divorce.
Under Tennessee Code § 36-4-121(b)(1)(B), marital property includes income from and any increase in value during the marriage of property determined to be separate property when each party substantially contributed to its preservation and appreciation.
Tennessee Code § 36-4-121(b)(1)(C) establishes that marital property includes recovery in personal injury, workers’ compensation, social security disability actions, and other similar actions for wages lost during the marriage, reimbursement for medical bills incurred and paid with marital property, and property damage to marital property.
How Is the Value of Assets Determined?
With most bank accounts and financial matters, the value is inherent. Non-cash assets can be much trickier, but a court will generally assign the fair market value, which is basically the price a person would pay for the item. Valuation of certain assets can be very costly for spouses when there is a dispute about the value of property.
If you are considering a prenuptial or postnuptial agreement in the Memphis area, you will want to have a knowledgeable family lawyer guide you through the often- complicated process. While it is wise to recognize that these agreements can be challenging to create, it is also worth noting that the couple can often move forward with certainty knowing that they are protected by a mutual agreement that will allow them to live happily together knowing they are both secure.
Shannon A. Jones, Attorney at Law understands how important these agreements can be to you and your family and will work to achieve agreements that protect the rights of our clients. You can have us provide an honest and thorough evaluation of your case when you call (901) 390-9041 or contact us online to take advantage of a free consultation.