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Prenuptial agreements are contracts that parties enter into prior to marriage. Post-nuptial agreements are contracts entered into after marriage. Usually these agreements are used to protect property from the consequences of divorce or death of a spouse. Often they are used in second marriages to protect certain property of a spouse with children from a prior marriage. These types of agreements are becoming increasingly popular, increasingly complex, and they are scrutinized very closely by the courts. These agreements must be entered into freely, fairly, knowingly, understandingly, and in good faith and with full disclosure. It is advisable for any party wishing to enter into such an agreement to consult with a knowledgeable prenuptial attorney.

Requirements for a Prenuptial Agreement

The requirements for a prenuptial agreement are similar to a standard contract, with some exceptions, such as:

  1. The prenuptial agreement, and any amendments, must be written, not oral.
  2. No consideration (or quid pro quo) is required, which means one party may give up important statutory rights in exchange for nothing more than the right to marry the other party.
  3. Each party must make fair and reasonable disclosure of his/her property and financial assets and obligations.
  4. Each party must voluntarily enter into the prenuptial agreement (required for all contracts, but beware of a prenuptial agreement presented to the prospective spouse on the eve of a marriage).
  5. If the prenuptial agreement addresses spousal maintenance (alimony), it must not be unconscionable at the time of enforcement. That’s the legal way of saying that a court may not enforce a maintenance provision which is unfair at the time of divorce or legal separation, even if it was fair when the prenuptial agreement was signed.

A prenuptial agreement may address issues such as:

  1. Division of property and debt.
  2. Clarifying which assets will be community and which will be separate.
  3. Rights and obligations under insurance policies, wills, employee benefit plans, retirement plans, etc.
  4. Spousal alimony / maintenance.

Post-Nuptial Agreements

A post-nuptial agreement in Idaho is identical to a prenuptial agreement in terms of what it may address. The difference is that the spouses are already married at the time the post-nuptial agreement is signed.

What differentiates this agreement from a separation agreement made while the parties are divorcing is that with a post-nuptial agreement the spouses have not filed for dissolution, nor is the agreement being signed in anticipation of a divorce. Instead, the purpose of a post-nuptial agreement is to preserve the marriage, albeit on new terms, not to dissolve it.

Separation Agreements

If the parties are preparing for a divorce, they should have a separation agreement, prepared in anticipation of divorce. A post-nuptial agreement which was prepared as part of the divorce process, rather than to preserve the marriage, may not be enforceable if a separation agreement should have been used instead.