A pre-nuptial agreement is an agreement made before marriage, usually to resolve issues of support and property division if the marriage ends in divorce or death by a spouse. A pre-nuptial agreement must be in writing and signed by both parties. The agreement shall be enforceable without consideration and becomes effective upon marriage.
There are three criteria in determining if a contested pre-nuptial is enforceable;
- whether the agreement was obtained through fraud, duress or mistake, or through misrepresentation or nondisclosure or material facts;
- whether the agreement is unconscionable; and
- whether the facts and circumstances changed since the agreement was executed, so as to make its enforcement unfair and unreasonable.
A postnuptial agreement is an agreement entered into during the marriage at which time when separation or divorce is non-imminent.
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