There are three keys to any of these agreements: clarity, permissible terms, and conscionability. An agreement is of little use if it is so vague that you cannot determine the parties’ intent. It is equally pointless if the terms are not permitted by law, either through illegality or as a matter of public policy. Conscionability in this context applies to the creation of the document; a document which is obtained through fraud, duress, or coercion can be voided. These agreements are used to establish the parties’ rights within a relationship, or at the conclusion of the relationship.

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• A prenuptial agreement is entered into by two parties in contemplation of marriage. The agreement may address finances during the course of their relationship as well as:

  • the financial issues in the event of divorce or separation

  • the payment of maintenance

  • the parties' rights to the estate of the other in the event of their death

Neither party can contract away a child’s right to be supported, or the child’s right to the company of each parent.

 

• A post-nuptial agreement is one that is entered into by two people who are already married. It can address the same matters as can a prenuptial agreement.

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• A cohabitation agreement is between two people who are living together, but are not married. It can address the same matters as can a prenuptial agreement, but must do so in a different format. There are simply different legal rights and presumptions in place when couples are married than when they are not married.

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