Frequently, there is a significant difference between the parties’ wealth, experience, vulnerability and age. Also, emotion and optimism cloud the fact that after marriage, enforcement of these contracts will profoundly affect the property rights, survivor rights, support rights, and support obligations of the parties, whether or not their marriage is successful. In these agreements, it is possible for parties to waive almost any right they would otherwise acquire by marriage, including the right receive spousal support from the other party. However, child support rights cannot be waived. Other important probate rights, such as the right to a probate homestead (the right to occupy property owned by a deceased spouse), and the right to a probate allowance (the right to receive financial support from the estate of a deceased spouse) may be unwisely waived by parties who are not represented by an independent, qualified lawyer who is aware of the post-marriage effects of these agreements.
• Pre-Nuptial Agreements: These powerful contracts are made prior to marriage by parties who intend to marry each other. They are not binding, and become void, if the parties do not marry, or if they fail to marry by the date set in the agreement. Because the parties are not married when they negotiate and sign these agreements, neither has a fiduciary duty (defined as the duty of utmost good faith and fair dealing) to the other. Instead, these business contracts are negotiated by the parties and their attorneys at arms-length, just like any other business deal between unrelated parties. To avoid unfortunate future results, every provision must be negotiated and carefully drafted.