Postnuptial agreements are increasingly sought by Alberta couples who recognize the advantages of a prenup only after tying the knot.
They aim to establish certain provisions to circumvent potential legal complications if the union dissolves. For many in Alberta, these agreements have become popular, especially as individuals marry later, often bringing substantial assets into the relationship.
Hiring a lawyer with plenty of experience in postnuptial agreements is crucial. When it comes to navigating the complex world of divorce, at Jones Divorce & Family Law, our lawyers can offer insights on securing an optimal resolution for your case.
We understand the emotional and legal challenges that come with the possible dissolution of a marriage, and we are committed to helping you achieve the best possible outcome.
About Postnuptial Agreements
A postnuptial agreement, often called a “postnup,” serves a similar purpose to a “prenup.” It delineates each party’s obligations and typically addresses key financial matters should the relationship end.
Frequently, postnups specify which assets fall under “marital” property and which remain as “separate” property if the union concludes. For instance, an individual may state in the agreement that a family business remains solely in their possession in case of a divorce.
The Alberta courts will examine these agreements with a discerning eye and can deem a postnup invalid if it’s believed it wasn’t established in genuine good faith.
In such scenarios, partnering with a divorce lawyer skilled in handling postnuptial agreements and well-versed in Canadian family law is crucial. An attorney with this expertise will help you create a binding legal document.
Why Should You Consider a Postnuptial Agreement?
While marriage is founded on trust and commitment, prenups or postnups may signify a lack of these elements. Yet, having a postnuptial agreement doesn’t necessarily imply mistrust or skepticism about the marriage’s longevity.
Here are reasons why couples may want to consider a postnuptial agreement:
CLARITY DURING CHALLENGING TIMES
Breakups can be emotionally charged, leading to impulsive decisions. A postnup, crafted when both partners are in a clear-headed space, offers pre-defined guidelines. This avoids protracted legal battles and spares the family, especially children, from unnecessary strife.
SAFEGUARDING PERSONAL ASSETS
Many individuals are tying the knot later in life, having already established personal wealth or businesses. A postnup can shield these hard-earned assets should the marriage face challenges.
When Should You Consider Hiring a Postnuptial Agreement Lawyer?
A postnup often emerges when a significant financial shift occurs in a marriage. For example, if one spouse receives a family inheritance or starts a business, they might draft a postnup to ensure the assets stay within the family or retain business ownership in case of a divorce.
In Alberta, while certain assets like inheritances or those brought into the marriage are generally exempt from marital property division, any appreciation in their value isn’t. Unless there’s an agreement, this increase can be deemed marital property. Postnups can also protect inheritance rights for children from prior relationships or ensure support for a business partner or dear family member.
Hiring an experienced lawyer for drafting a postnup ensures that the postnuptial agreement is legally sound and adheres to all jurisdictional nuances. Additionally, a lawyer can provide invaluable guidance on asset protection and potential pitfalls, safeguarding your interests in unforeseen circumstances.
Legal Concerns with Postnuptial Agreements
In Alberta, when entering marriage or an adult interdependent relationship, individuals acquire rights to seek spousal support upon divorce. A postnuptial agreement can waive these rights, but it must be demonstrated that the waiver was voluntary and with full comprehension of the implications. Courts may find such waivers atypical and will scrutinize them rigorously before validation. The agreement could be invalidated if it isn’t: •
- Established in good faith
Contrary to popular belief, postnuptial agreements aren’t exclusively considered during marital difficulties. Even amid thoughts of separation, a postnup can be formulated, provided it’s crafted in good faith and isn’t merely a precursor to a separation agreement with financial protective measures. If these conditions are met, the agreement may still stand in court.
Frequently Asked Questions to Postnuptial Agreement Lawyers
What is a postnuptial agreement?
A postnuptial agreement is a legal contract drafted after marriage, detailing the division of assets, debts, and other financial aspects should the couple divorce or separate.
How does a postnuptial agreement differ from a prenuptial agreement?
The key distinction lies in the timing. A prenuptial agreement is finalized before the wedding, whereas a postnuptial agreement is drawn up after marriage.
What can be included in a postnuptial agreement?
A postnuptial agreement can outline the division of assets and debts, spousal support provisions, and other financial considerations. Essentially, it is up to the parties to decide what to include
Are there any constraints on what can be included in a postnuptial agreement?
A postnuptial agreement cannot decide on child custody or child support. Additionally, any clauses that encourage divorce or are illegal, unjust, or contravene public policy might be considered void.
Do we each need separate lawyers to draft and review the postnuptial agreement?
Yes, in order for a postnup to be legally binding in Alberta, both parties must obtain independent legal advice and sign with a lawyer. Engaging separate lawyers ensures that the interests of both parties are well-represented, mitigating potential claims of duress or coercion in the future.
Can a postnuptial agreement be modified or revoked in the future?
Yes, a postnuptial agreement can generally be altered or nullified. However, this often demands mutual consent, and any changes should be documented in writing.
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