Written Agreements

HUSBAND and WIFE (Pre and Post Nuptial Agreements)  LIFETIME COMPANIONS (Agreements based on Contract Law)

DOMESTIC PARTNERS (Agreements based on Contract Law)

There are many statutes (laws) that may apply to your agreement, depending on your circumstances, and your plans:

	RSMo 432.010 (contract law) requires that a valid Agreement regarding marriage, or terms that won't be completed in less than a year, be in writing.
	The Agreement must be voluntary for both of you. (Last minute demands, before walking down the aisle, can make the 'voluntariness' of your agreement suspect.)
	"Consideration" is a legal term which means each side must give something to the other for a valid "contract": are each of you giving up something of value in order to get the other one to agree to the terms of your Agreement?
	The Agreement must be signed by both of you, and the signatures must be notarized.
	The terms must be definite enough that they can be understood by third parties (i.e. a Judge, banker, physician, IRS, hospital personnel) without you explaining it to them.

Most states have statutes that make a difference in what you say in your Agreement. This section refers to Missouri law:   RSMo 451.220 applies if marriage is contemplated, anticipated or already involved, there is a statute that tells you what MUST be included in the agreement. The Agreements would be called "pre" nuptial or "post" nuptial depending upon whether they are drafted and signed before or after the marriage.   RSMo 432.010 applies if NO marriage is contemplated or anticipated, but the parties intend to have a "partnership" or "companion" relationship. More and more, both same gender and heterosexual couples are choosing to live together without a legally binding marriage. The reasons for rejecting the form of marriage required by state law may be related to social or family conflicts, religious reasons, or simply personal preference. Contract law may provide the structure that they need to obtain the protections and benefits of their agreements.   Other statutes provide certain protections, if problems develop. For instance, if there is special wording of "acknowledgment" and the signatures notarized it may have fewer problems of "proof" if disputes develop. And, even if it may be valid between the parties, third parties (like creditors, heirs, and some others) will not be bound by it unless they are given notice of its existence.   Questions that Written Agreements Might Resolve The general assumption is that couples should just get married and accept the "relationship rules" imposed by the law. But there are many couples who, for many reasons, feel that they cannot get married. Some of the complicating factors may be: have children relying on us, together or separately for their care;   we do plan to own property together, and don't know how the titles should read;   we do plan to live together and share income;   we have religious differences and families who disapprove of our relationship;   One of us has more money than the other and we want to keep some, or all, of our property separate;   One or both of us is ill, or we anticipate that we may need extended care because of a disability and we want to make sure that we can choose our partners to care for the sick person, and the expenses of the illness won't impoverish the healthy partner;   We have adult children and/or biological relatives that may, or certainly will, interfere with our plans (including separating us, if one or both of us requires nursing home care);   We have very definite ideas that are not traditional as to what happens in the event of a disability or death of one of us, and we want to be certain the person of our choice is "in charge."     Red Flags!!! One side has lots of property and money, the other side has none, or much less.   At least one of you has been married before and there are children from a prior marriage.   Your lifestyle is different than one set of extended family expected?   Your choices include a non-traditional bread-winner and stay at home parent?   You have children and you each have different views as to religion (and/or child- rearing)?   You can't agree on how money is to be handled?   If you are very young, what happens if...   Your parents or other relatives interfere in your marriage?   If you are elderly: Your children or other relatives interfere in your marriage?     Cautions: If sexual activity is anticipated and is to be referenced in the Agreement, and the couple does not anticipate or contemplate marriage, then the Agreement might be unenforceable in the Court system as "against public policy."   If children are anticipated or will be included in the relationship, laws related to children can negate some of the most carefully drafted documents, in part, orwhether the Agreement has been drafted according to the laws regulating Marriage or Contract.   If the document involves estate planning (one partner were to become incompetent, ill or even die) then the laws related to who has the right to care for the sick partner, and/or inheritance laws must be considered.   If the rights of third parties are affected...such as creditors, joint owners of real estate, business partners, blood relatives (i.e., parents or children) then careful drafting will be necessary -- and it may be necessary to record the Agreement. Recording a document gives "notice" to third parties of its existence.   An oral Agreement affecting marriage is not binding. It must be in writing, in a specific form and the parties must disclose all of the property to each other. &nbs;p A Premarital Agreement does not take affect until the parties get married. If you do not get married in the relatively near future, you should certainly review your Agreement with a lawyer at the time the estate is set.   Some states consider premarital Agreements invalid if signed anywhere from thirty days to three months before the wedding takes place. Missouri does not put a time limit on the marriage, but I advise you not to wait more than three months after executing this Agreement -- or to reaffirm its terms when you do get married.   A Post marital agreement (executed AFTER marriage) is also possible.   Generally, simple is better. Sometimes your circumstances require a more complicated and comprehensive Agreement. You will need a lawyer to tell you when your circumstances are complicated enough that a simple document would be inadequate.   If, at any time in the future, you decide to make changes in your Agreement, those changes must be reduced to writing. Witnesses and a notary must witness your signatures. These precautions protect you both.   No matter how comfortable the two of you feel with your Agreement, there are other people who could challenge it. For instance, your children, spouses of your children, blood relatives, and even the IRS and/or your creditors could challenge your Agreement.   In order to remain valid, the Agreement must be fair to both of you, both at the time that it is made and at the time your marriage might end (whether by death or divorce). For that reason, it should be reviewed by a lawyer from time to time -- at least every two or three years (or more often, if there are major changes in your lives). That is the only way to make sure that your Agreement remains as solid as possible, and least vulnerable to challenge.   Both husband and wife/partner/companion should write wills after you are married, or your contract is executed, if you are not getting married. Your wills should be consistent with your Agreement and a copy of the Agreement should be attached to each will.   One of the most common reasons that Pre and Post marital Agreements are held to be invalid is that one side or the other fails to disclose all of the property that they own.

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