Prenuptial agreements are written agreements that parties who are planning to get married execute. They do so with the realization that a divorce in the future is possible, however unlikely. They wish to avoid the uncertainty associated with the division of marital property by the court in the future. They may also wish to avoid the uncertainty associated with the issue of alimony. Prenuptial agreements are common and are routinely enforced by the court.
Prenuptial agreements are different than other types of agreements in a fundamental way. In the negotiation of prenuptial agreements, the parties are in a close personal relationship and, therefore, they usually trust one another more than parties in other types of agreements. As a result, they may fail to consider their own best interests as much as they otherwise would. In other words, they are more vulnerable to being taken advantage of. For this reason, in order for the court to consider a prenuptial agreement to be valid, it usually requires the parties to fully disclose their finances to the other during the negotiation of the agreement. In this way, the parties are certain to be fully informed of the rights that they are giving up when they execute the agreement, and the resulting prenuptial agreement becomes less vulnerable to attack in the event of a divorce.
A separation agreement is a written agreement that parties execute when they are in the process of separating or divorcing. They do so to avoid the uncertainty associated both with how the court may divide marital property and with how the court may address alimony. Unlike with prenuptial agreements, separation agreements may also address the issues of child custody, child support, and attorney fees. Also unlike prenuptial agreements, the parties to a separation agreement are no longer assumed to trust one another, and, therefore, full disclosure of their finances is no longer required in order for the court to consider the agreement to be valid. The only thing that stops parties from entering into a separation agreement in every divorce case is that parties often cannot agree. If they cannot agree, then a trial will be required.