The Faulstich Law Firm. St. Louis Family Law Attorneys. -
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Prenuptial Agreements

How do you increase the probability that a Prenuptial Agreement will be enforced?

*No attorney can guarantee the enforceability of a prenuptial agreement.*

Some factors that increase the chances of enforceability are:

(1)    Time: Giving the spouse that is not asking for the prenuptial agreement more time to consider the agreement. If possible, this should be done before an engagement. If that is not possible, then as closely after as possible. The more time the spouse not asking for the prenuptial agreement has, the less the agreement looks like it may have been made under duress.

Can we change a prenuptial agreement once we have made that agreement?

Yes, and this can actually increase the likelihood of enforcement in some situations. However, once a prenuptial agreement is changed or amended, typically it is after the marriage. Therefore it would then be called a post-nuptial agreement.

A post-nuptial agreement is like a prenuptial agreement in some ways. However, even if you never entered into a prenuptial agreement, couples can still enter into a post-nuptial agreement. 

Can we agree to Child Custody matters or Child Support in a Prenuptial Agreement?

Technically, yes, you can agree to custody matter or support in a prenuptial agreement. The more important question here, however, is about enforceability. Will a prenuptial agreement that has an agreement as to custody and support be enforced? The answer is probably not. The entire agreement may not be voided if there are other aspects to it and there is a severability clause, but agreements as to custody and support have routinely been voided by the Courts.

The reasoning behind the non-enforcement of custody and support has two main facets: (1) best interests of the children involved and (2) ever changing life circumstances. A typical custody or support matter that was decided usually during the pendency of a divorce, is always modifiable if there is a significant change in circumstances. The number of ways in which this requirement can be met are as numerous as the stars. Someone could change jobs for instance. This could mean both a change in salary and a move to a different state. The custody agreement made when both parents are local will look very different from one that is agreed to when one is local and one lives 1,000 miles away. The support agreement may change because the salary of the party paying support changed or in the alternative, if the parent receiving support changed. The calculation is dependent upon the relative salaries of each parent. Agreements of support and custody necessitate change in order to accommodate the best interests of the child and adjust to the changing circumstances of their parents and their lives. This is why a non-dynamic custody agreement memorialized in a prenuptial agreement will rarely be enforced.

When do you need a Prenuptial Agreement? What are indicating factors?

Age: This indicator plays into the indicators below. The older someone is, the more likely it is that they will have had a previous marriage, substantial assets that are individually owned, or a business that they own. Considering this economy however, there are a lot of younger entrepreneurs out there in the business world, so age is not always an indicator of how likely you are to need or want a prenuptial agreement.

Previous Marriage: Someone typically might think that a person with a previous marriage just wants a prenuptial agreement to save themselves some of the hassles of another divorce proceeding.
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