Prenuptial & Post Nuptial Agreements

One of the most protected rights in the law is the ability to freely contract with another. This basic right is also protected in the context of family law. The freedom to contract is often exemplified by the right to undertake a prenuptial or post nuptial agreement.

Essentially these agreements are contracts that are entered into by parties in the context of a family situation that impacts on the rights, duties and obligations under the law that effects property rights and other legal obligations. If the contract is a prenuptial contract then it simply means that the contractual rights are determined before marriage, or prenuptial. If the contract is a postnuptial contract then it simply means that the contractual rights are determined after marriage.

In the context of after marriage, usually people undertake to negotiate a marital settlement agreement that delineates which party is responsible for what debts and obligations and also sets forth who owns what property arising from the marriage. Postnuptial agreements can also impact on the issue of spousal support and custody and time sharing. Such agreements can be as detailed or as general as the parties desire. However, litigation usually ensues over the meaning of the obligations in a postnuptial agreement so careful consideration should be paid to the terms and the specificity of the agreement.

Similarly, the prenuptial agreement also is a contract that outlines property and debt obligations. One of the biggest differences is, however, that the prenuptial is usually scrutinized more closely because the parties have yet to marry and incur community property or debts. Courts are reluctant to honor real specific prenuptial agreements that burden one party or the other with expectations and duties that, in light of the marriage, are unrealistic or unfair.

That is why it’s important when negotiating a prenuptial agreement that careful consideration is given to ensuring that both parties are equally represented and that there isn’t a power imbalance in the negotiations. That is one of the quickest ways to have a prenuptial agreement invalidated. Contact the Justice Legal Group when you need help with either a prenuptial or postnuptial agreement. You can reach us throughout New Mexico at or call us at 505-880-8737.

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