Premarital & Postnuptial Agreements

Premarital agreements (or prenuptial agreements) can be a very helpful tool in protecting a couple and their family from prolonged disputes and potential litigation in the event the marriage dissolves or upon death of one of the spouses.

Premarital agreements can be very important for clients with a broad range of concerns, including those entering into a marriage with children from a prior relationship, or those with significant assets or an expectancy of a future inheritance. These agreements can help couples of any age gain certainty and clarity, and, in our mobile society, help avoid concerns that might otherwise arise as a result of the variation in marital property regimes in the various states.

A premarital agreement can serve to predetermine the retention and division of property upon the dissolution of a marriage. It can also stipulate the amount and kind of support, if any, a spouse will receive should the marriage end. Negotiating such terms well in advance of a wedding, while perhaps not everyone’s ideal of wedding planning, is much more effective than addressing the same issues after a marriage has unraveled, when emotions are likely raw.

Another benefit of a premarital agreement is that it can delineate marital property from separate property in an approach that the couple understands and accepts. Under Maine law, couples can hold “marital property,” to be divided between them upon divorce, and “separate property,” that is not divided and remains the property of the original owner/spouse. While all states have rules that define what constitute separate versus marital property, those rules can vary greatly. Even within New England there is great variation, and the laws of one state can yield very different results from those of a neighboring state. Thus, it can be very beneficial to use a premarital agreement to memorialize a couple’s agreement as to what constitutes separate and marital property so there are no surprises, regardless of where they may live at the time of the divorce. As couples marry and subsequently move, this becomes more critical.

Premarital agreements may also incorporate decisions that ensure some predictability in the event of a death of either spouse, and can establish a baseline for the spouse’s inheritance. Under Maine law, however, such agreements may not be used to predetermine child support and custody.

Postnuptial agreements are also available to spouses who wish to enter into an agreement after the wedding has occurred. However, premarital agreements are preferable to postnuptial agreement in the eyes of a court, and so we encourage people to consider them before the wedding occurs.

We are happy to talk with the clients about their particular circumstances and how a premarital or postnuptial agreement might benefit their situation. We will represent clients in the negotiation of the terms of such agreements and will gladly review agreements drafted by other counsel.

For further information, please see our Client Resources page.