When a marriage breaks down, there are a lot of emotional and legal matters to take care of, especially if you signed a prenup before getting married. As a family law firm, we’ve witnessed firsthand how these agreements can shape the divorce process.We hope this article helps you understand what happens when you sign a prenup and later find yourself in the midst of a divorce.
What is a prenuptial agreement?
A prenuptial agreement, commonly known as a prenup, is a legal contract entered into by a couple before they marry. This document typically outlines the ownership of personal and financial assets should the marriage end in divorce. It’s a proactive measure to manage assets and liabilities, often including stipulations about spousal support and property division.
How does a prenup agreement work when it comes to assets?
One of the primary roles of a prenup is to dictate how assets and debts will be divided in the event of a divorce. Without a prenup, assets are typically divided according to provincial laws, which often means a 50/50 split. However, a prenup can specify a different arrangement, potentially safeguarding individual assets acquired before marriage or even dictating the division of assets acquired during the marriage. People enter the prenup when they are bringing in big assets into the marriage and/or have children, who need to be protected financially.
Enforcing Spousal Support and Alimony After Divorce
Prenups often include terms regarding spousal support or alimony. These terms can limit or waive alimony in certain situations. While a prenup can include such provisions, they must be fair and reasonable at the time of the divorce, not just when the agreement was signed. Courts may disregard provisions that seem unjust at the time of divorce, so it is fair for both parties involved.
For a prenup to be enforceable, it must meet specific criteria. It should be entered voluntarily, without coercion or duress. Both parties are expected to fully disclose their assets for the agreement to be fair and reasonable. If a prenup is found to be unconscionable or signed under pressure, a court may deem it invalid.
Does Prenup Dictate Child Support and Custody?
Prenups cannot dictate terms regarding child support or custody. These matters are sensitive and always determined based on the child’s best interests at the time of the divorce, not pre-agreed terms.
How to Deal with Change in Circumstances?
Life is uncertain and certain circumstances can change between the time a prenup is signed and when a divorce occurs. Courts may consider these changes, especially if they result in the agreement being unfair to one party. For example, if you chose to become a stay-at-home parent a few years after getting married, you might receive spousal support even if that wasn’t mentioned in the prenuptial agreement.
Finding the Right Legal Representation
Both parties should have independent legal representation when drafting and signing a prenup. Make sure you fully understand the agreement and its implications. Legal counsel can also help in drafting a document that is fair, reasonable, and more likely to be upheld in court.
As life evolves, so can the relevance and fairness of a prenup. In any case, seeking legal advice is important to ensure that your rights and interests are adequately protected. Sterling Law in Brampton is committed to providing legal guidance on drafting prenuptial agreements and navigating the divorce process. Please reach out to us for a free consultation (only valid for first-time clients and for up to 30 minutes).
Note: This article is for informational purposes only and does not constitute legal advice. For personalized guidance, it’s recommended to consult a qualified family law attorney.