There are a number of different kinds of marital agreements that will play a role in an Alabama divorce action.
Birmingham Divorce Attorney Steven Eversole of Eversole Law LLC is experienced in negotiating and ensuring the execution of:
- Prenuptial agreement upon which the marriage is entered into;
- Postnuptial agreement entered into after a couple is married;
- Marriage agreements resulting from actions of couples under common law (common law marriages);
- Final marital agreement upon which the divorce is granted.
Each of these agreements contains certain provisions that will be key in the process of divorce or after the divorce is granted.
Generally speaking, marital agreements stipulate how a couple's property and other affairs will be divided in the event of a divorce or death of one of those involved. The cardinal rule of any marital agreement is that the parties should not be represented by the same attorney. Even when couples are on good terms (indeed, as some are beginning their life journey together), their interests in these matters are directly adverse. One attorney representing both individuals may in fact render the agreement unenforceable.
Absent a marital agreement, state law will require equitable distribution of marital property. Equitable distribution, though, is not necessarily equal. It takes into account a range of factors, including length of marriage, physical and mental well-being of those involved, future wage-earning potential of individuals and the contribution each individual made to the professional success of the other.
It's worth noting marital agreements (aside from the final marital settlement agreement) usually do not contain enforceable provisions that will restrict one individual's custody, parenting time or child support. That is because these issues are based almost solely on what is in the best interest of the child – not what either parent wants or said they wanted at the time the agreement was signed.
In order for a marriage agreement to be deemed valid, each party must fully disclose all property and debts. Failure to do so may render the agreement unenforceable for breach of fiduciary duty or fraud.
It also needs to describe with specificity the property that applies to the agreement and that which does not. Future wealth should also be considered, including stock options, family business interests, employee benefit plans and retirement plans.
Prenuptial Agreements in Alabama
A prenuptial agreement is a contract entered into by a couple prior to their marriage concerning ownership of each of their assets in the event the union ends in divorce.
Some find the prospect of a premarital agreement distasteful because it spells out what will happen if the marriage dissolves – and the two parties are promising to stay married until they die. But in reality, it has a number of benefits in addition to reducing conflict in the event of a divorce.
For one thing, a well-drafted prenuptial agreement can protect a dying spouse's wishes in the event he or she dies absent a valid will. Beyond that, it can encourage a couple to work through differences because of the financial ramifications of separation.
Contrary to popular belief, prenuptial agreements benefit more than just wealthy people. They can help protect businesses assets if one individual is an entrepreneur. It's also beneficial in cases where one partner has a high debt load, one of the parties is remarrying (and may have children/support obligations from the prior marriage), to protect estate plans/family heirlooms, or in the event one partner plans to stay home and raise children.
Postnuptial Agreements in Alabama
A postnuptial agreement is a legal contract made between spouses after they have already been married.
It is not necessary for a couple to have a prenuptial agreement before they can enter a postnuptial agreement. A postnuptial agreement most typically addresses property division issues in the event of divorce or death of one spouse.
It's important to consult with an attorney in drafting such an agreement if the intent is for it to be enforceable. Courts will uphold these contracts, but they are approached with skepticism. If there is any reason to find the contract invalid, the courts will identify it.
Common Law Marriage Agreements
Common law marriage agreements in Alabama are a way for those in common law marriages to stipulate how property, assets or debts should be divided in the event of death or separation.
This is often wise because individuals who choose not to legally marry may still find their lives – including finances – deeply intertwined after many years together. Sorting through all of this in the event of a separation can be especially difficult absent a prior authorized agreement.
An attorney can advise couples about whether their union will be recognized by common law (or what they need to do to make it so), and also how each individual can protect their assets.
Marital Settlement Agreement
This is the agreement that dictates terms of divorce – everything from child custody and parenting time to spousal and child support, property division and interest in retirement accounts, health benefits and stocks. It may also detail who is responsible for paying certain debts, and whether there are stipulations for future communication/dealing with one another.
A couple can hammer out a marriage settlement agreement on their own (through mediation and with the advice of an attorney) that will be later approved by the judge in the final divorce decree. In fact, this is usually preferred and it gives the individuals more control over the terms.
However, a marital settlement agreement could also be drafted by the judge following a trial.