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Recent celebrity marriages - and divorces - have propelled the issue of prenuptial agreements to the forefront of news coverage and, consequently, many couples' wedding planning. Once seemingly limited to the rich and famous, the advantages of a prenuptial agreement can benefit individuals from all walks of life, and are particularly worthwhile for professional men and women.
The American Academy of Matrimonial Lawyers reports that 74% of family law attorneys noted an increase in requests for prenuptial agreements since 2006; and more than half of these attorneys noted an increase in female requests for a prenuptial agreement. [1]
Prenuptial agreements, often referred to as "prenups," permit individuals to contract for the division of specific assets and property in the event of divorce and upon death. Prenuptial agreements can also provide, or prohibit, a specific amount of maintenance (sometimes referred to as alimony) awarded to a spouse. Fortunately, the substantial benefits of a prenuptial agreement are not lost to individuals who neglected to execute an agreement prior to marriage. During their marriage, a couple may execute a similar type of contract, called a postnuptial agreement, in which they can contract for the division of property and maintenance awards in the event of divorce.
Prenuptial and postnuptial agreements do not necessarily indicate that a party expects to divorce in the future. Instead, a prenuptial or postnuptial agreement simply demonstrates the parties' agreement to make responsible choices to ensure the protection of their property and assets if a need for the enforcement of such an agreement should ever arise. As one might expect, parties are typically more cooperative, and ultimately more reasonable, in constructing the terms of an agreement without the incredible stress of an impending divorce. Additionally, the execution of a prenuptial or postnuptial agreement can greatly reduce costly litigation during a divorce proceeding later.
In the absence of a prenuptial or postnuptial agreement, divorcing parties are left with two options. First, the parties may attempt to reach a settlement agreement. However, the understandably emotional state of one or both parties going through a divorce may substantially hinder their ability to reach a reasonable resolution. Second, the parties can surrender to the divorce court to determine their rights...including the division of property and issues relating to maintenance. These alternatives typically result in protracted, stressful and expensive litigation that can be avoided with an enforceable agreement.
In the absence of a prenuptial agreement, a postnuptial agreement or a settlement agreement, the Court must adjudicate the parties' issues, including the division of assets, real property, personal property and any maintenance award. The parties must present their evidence to the Court, which will exercise its discretion in accordance with Kentucky statutory law governing the division of property [2] and maintenance. [3]
Kentucky law does not require parties to obtain attorney representation to execute a prenuptial or postnuptial agreement. However, to ensure that a prenuptial or postnuptial agreement is properly executed and enforced as the parties intended, it is essential that the parties retain competent attorneys with genuine family law experience. A prenuptial or postnuptial agreement must be executed in accordance with specific provisions of Kentucky law. Otherwise, a court may deem the agreement unenforceable. For example, a court will not enforce a prenuptial or postnuptial agreement unless each party makes a full disclosure of his or her assets. Further, each party must agree to the terms freely, knowingly and voluntarily. [4] The Court will not enforce an agreement if it was executed by fraud, duress or mistake. [5] Importantly, the Court must find that the agreement was neither unconscionable at the time it is executed nor unconscionable at the time a party requests its enforcement.
An experienced attorney helps ensure that a prenuptial or postnuptial agreement protects his or her client's interests and is executed in accordance with Kentucky law. Importantly, each party should obtain independent counsel to review and discuss the terms of a prenuptial or postnuptial agreement. Kentucky courts have refused to enforce prenuptial agreements where a spouse is denied the opportunity to consult with an attorney. [6] Additionally, a single attorney cannot represent both parties to a prenuptial or postnuptial agreement because the parties may potentially have conflicting interests. However, one party may pay for the other party to consult and obtain independent counsel.
[1] Big Rise in Prenuptial Agreements Says Survey of Nation's Top Divorce Lawyers, American Academy of Matrimonial Lawyers, Sept. 22, 2010 <http://www.aaml.org/about-the-academy/press/press-releases/pre-post-nuptial-agreements/big-rise-prenuptial-agreements-sa>.
[2] KRS 403.190.
[3] KRS 403.200.
[4] Gentry v. Gentry, 798 S.W.2d 928 (Ky. 1990).
[5] Id.
[6] Tilton v. Tilton, 113 S.W. 134 (Ky. 1908).
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