Separate property and marital property are two different types of property you may find out are involved in your estate in divorce. Both types of property can be owned by one person- maybe one spouse or both will have some of each. This is why people may think about and talk about common property agreements like a prenuptial agreement. And, not as commonly talked about, a postnuptial agreement.
Prenuptial or Postnuptial?
The formalities and details about when each of these types of agreements was made are important. One of the details that is important is date and time. Property agreements take their title from the time and situation when the agreement was made and signed. When you were married and when you made an agreement regarding property is important. If the agreement is made before marriage, it will be considered a prenuptial agreement. If the agreement is made after you were married it is a postnuptial agreement. And, everything is important about the date, time and even the place and how the agreement is signed. All of these things can affect the validity of the agreement.
Do lawyers need to be involved? My opinion is yes lawyers need to be involved. And, each person who is thinking about or involved in a property agreement should have their own lawyer. You should seek out an experienced family law and divorce attorney to advise you on the particulars of what you want to do, review the document or draft the document and advise you. Each person should have their own attorney for ethical reasons also. One attorney cannot represent two people. And, there are certain specific things that need to be included and considered in the preparation of the property agreement to make sure it is valid and enforceable.
If you are going to do something, do it right. If you are thinking about or have received a property agreement to sign, find an experienced lawyer to advise you and prepare or review your document.
Jill O’Connell, 940-497-5454