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Will A Prenuptial Agreement Offer Me Protection If I Divorce My Spouse In Missouri?

Danica Patrick.jpgRecently, popular Nascar driver Danica Partick announced that she had filed for divorce from her husband of seven years. In her Petition, Patrick indicated that she had a prenuptial agreement and that neither party would be getting spousal support.

In Missouri, can a prenuptial agreement I enter into with my spouse settle property and support issues should we dissolve our marriage by divorce or legal separation?

Prenuptial agreements, commonly referred to as ante-nuptial agreements, when properly prepared can assist a marrying couple to resolve issues involving the division of property in Missouri as well as potentially resolve issues of spousal maintenance. Post-nuptial agreements are agreements entered after the parties marry and when properly prepared are also enforceable. However, due to the fact that the validity and enforceability of these type of agreements are so heavily litigated it is vital that they be prepared in strict conformity with the law in the state of Missouri.

The enforceability and drafting requirements of these agreements are somewhat unique for practicing family law attorneys. This is because the enforceability is not guided by a statute and then shaped by case law. While other states do, Missouri does not have a statute which deals directly with ante-nuptial agreements in the context of a divorce or legal separation. A drafting lawyer, or a Judge who is faced with the question of whether or not the agreement is enforceable, must exclusively rely upon current case law in their work. Without a statute as a guiding principle to shape case law, the requirements for an agreement to be binding may change more frequently. To put it another way, this area of the law is potentially more volatile than other arrears in the practice of family law. For this reason, many family law practitioners will not draft ante-nuptial agreements as part of their law practice.

For those attorneys who do draft ante-nuptial agreements the following principals for a valid agreement must be applied: the agreement must be entered into “freely, fairly, knowingly, and in good faith with full disclosure”. If any of these principals are violated the agreement will likely be invalid. These principles have been further shaped case law.

Due to the fact that the agreements are often very heavily scrutinized, it is extremely advisable that each party to the agreement have his or her own independent legal counsel. Put another way, each spouse should hire their own attorney to prepare, review or edit the documents as may be necessary. Further each party must be granted sufficient time to consult their attorney, to review the agreement and all relevant documents prior to signing the agreement and getting married. Without beginning with these principles of independent legal counsel for each party to the marriage and sufficient time to review the ante-nuptial agreement, the probability of the agreement being invalidated by your local family court judge increases dramatically as your judge is more likely to find the agreement to neither be entered into freely nor fairly nor knowingly.

As part of the process of completing either an ante-nuptial or post-nuptial agreement each person must fully disclose all or his or her income, property interests and liability. It is not sufficient for these disclosures to be painted with a broad brush. The disclosure should have sufficient detail so that there is evidence of not only the existing nature of the holdings but quantifiable evidence of current monetary values. For this reason, it is advisable to include, as an attachment, the documents which were relied upon to make the specific disclosure.

Even when these principles are met, a court may still invalidate the agreement if it is fundamentally unfair or one sided. In Missouri, an agreement which may strip a party of their fundamental rights to property that is otherwise marital, or is clearly one sided on its face, can be invalidated even when independent legal counsel are retained, sufficient time is present to review the agreement and full disclosure is made. For all of these reasons, if you or a loved one are involved in a relationship where an ante-nuptial or post-nuptial agreement are being contemplated it is critical that they seek the legal counsel of an experienced Missouri family law attorney.

Update July 3, 2013: In a very recent decision by the Eastern District of the Missouri Court Of Appeals, the Court found that once a trial court finds that an ante-nuptial agreement is valid based upon established Missouri case law it can not render a ruling contrary the language in the agreement solely on the basis of equity.

This blog addresses the broad concept of ante-nuptial agreements in Missouri and is not intended to be specific advise to your situation. Each situation is unique and has its own challenges and nuances. For a more detailed discussion of your particular situation please feel free to contact us today.