Going through a divorce is not easy for anyone involved. Even when the parties agree to keep the process as amicable as possible, a divorce is emotionally, and often financially, draining on the parties. The best way to limit the emotional and financial drain caused by a divorce is to reach an agreement that resolves all issues as soon as possible. What happens if you and your spouse entered into a pre-nuptial agreement prior to the marriage? Does that eliminate the possibility of contested issues in the divorce? Do you still need to retain a divorce attorney if you signed a pre-nuptial agreement in anticipation of your marriage?
What Is a Pre-Nuptial Agreement?
A prenuptial agreement is a contract that two people enter into in anticipation of a pending marriage. The contract constitutes a legally enforceable plan for how the future spouses will divide up their assets if they divorce someday or if someone dies. The State of Tennessee does recognize a valid pre-nuptial agreement and courts will interpret and enforce a pre-nuptial agreements just as it would any other contract.
Limits to a Pre-Nuptial Agreement
Although a pre-nuptial agreement (PNA) can settle many of the issues that frequently come up in a divorce proceeding, there are limits to the reach of a PNA. Specifically, a PNA cannot settle issues relating to the minor children of the marriage, such as custody and child support. All decisions relating to the minor children of a marriage must be made with the “best interest of the child” as the guiding standard. Because there is no way to know what is in a child’s best interest ahead of time, the parties to a PNA cannot settle child-related matters in the agreement.
What Role Does a Pre-Nuptial Agreement Play in a Divorce?
When things work out as intended, a properly drafted and executed pre-nuptial agreement will be used to settle many of the issues that typically come up in a divorce. For example, the division of marital assets may already be decided because it was agreed to in the PNA. In that case, the details of the provisions within the PNA that relate to the division of marital assets will simply be made part of the Marital Settlement Agreement during the divorce.
Why Would I Still Need a Divorce Attorney?
The fact that you entered into a PNA prior to your marriage does not preclude the need for a divorce attorney when you decide to end the marriage. On the contrary, there are several reasons why you should retain the services of a divorce attorney as soon as you begin to contemplate divorce, including:
- The pre-nuptial agreement may be challenged. The validity of a PNA can be challenged just like any other contract. For a PNA to be enforceable, the parties executing the agreement must do so voluntarily and knowingly. Specifically, the parties must fully disclose their assets and financial situation before signing the agreement for that execution to be considered “knowingly.” When it comes time to enforce the agreement during the divorce, it is not uncommon for the validity of the agreement to be challenged. At that point, you will be litigating both the validity of the PNA and trying to negotiate your divorce. Clearly, you need a divorce attorney by your side.
- Issues relating to children are not included in the PNA. If you had children during the course of the marriage, you will need to decide on custody, visitation, and child support during the divorce. Since none of these are included in the PNA, the existence of the PNA does not preclude the need for an attorney.
- The PNA may have missed something. Your PNA could have overlooked something important. This is particularly likely if you used a “DIY” form instead of working with an experienced divorce attorney when you executed the agreement. Even if you did work with an attorney, it is entirely possible that something was overlooked or that circumstances have changed enough that the agreement no longer covers everything. Therefore, you need a divorce attorney during your divorce to ensure that all your rights are protected throughout the proceedings.
Contact a Tennessee Divorce Lawyer
If you have additional questions or concerns about a divorce in the State of Tennessee, it is in your best interest to consult with an experienced Tennessee divorce attorney as soon as possible. Contact the team at Bennett, Michael & Hornsby today by calling 615-898-1560 to schedule your appointment.