Validity of an agreement before divorce
September 8, 2010 | 40,00 EUR | answered by Tobias Rösemeier
Hello,
My wife and I have agreed, after 18 years of marriage, that we will separate amicably and file for divorce.
Before we got married, we signed a prenuptial agreement with a notary, which included separate property, a pension equalization, and a waiver of any post-marital support (even in cases of hardship), as our "career" prospects were roughly equal at the time, or my wife seemed to have an advantage.
We are not parting ways in conflict, and I want to transfer to my wife a portion of the wealth that I have accumulated over the years so that she is financially secure for the rest of her life and, if she chooses, does not necessarily have to work anymore (although she has always been employed).
We are planning to have a "negotiation" soon with my wife and her parents, during which we would like to sign a contract regarding the separation/divorce, and I would like to formally document the intended partial transfer of assets.
Now, my question:
Is such a written agreement, made before the actual divorce proceedings and especially without the involvement of divorce lawyers, and signed by all parties (including my wife's parents as "witnesses"), legally effective and binding in the event of a divorce?
Or could a potentially aggressive divorce lawyer representing my wife invoke the nullity of this contract and try to open a new negotiation to achieve a different outcome?
If the latter were to happen, it would be economic suicide for me to make any "voluntary" offers before the divorce proceedings. However, all parties agree that such a contract should be made. But if this contract were to be deemed invalid, it would be unnecessary.
Who can answer this question with absolute certainty?
Thank you in advance and
Best regards.
Dear questioner,
Thank you for your inquiry, which I will answer taking into account the circumstances you have described. I would like to point out that adding or omitting essential elements of the situation can lead to a completely different legal outcome, and this medium serves to provide an initial legal orientation.
Based on the existing prenuptial agreement, all divorce consequences have already been effectively regulated by it. It is true that the existing prenuptial agreement could be contested if one spouse would be disadvantaged by it to an excessive extent. This cannot be determined from your description of the situation.
Since you both now want to make an amicable arrangement regarding the division of assets, it is strongly recommended to formalize this within a notarial agreement on divorce consequences, so that a binding and final resolution can be reached. It is not necessarily required to involve divorce lawyers, as you as spouses are free to design the divorce consequences. These do not necessarily have to comply with legal requirements, but can be individually agreed upon.
For legal certainty, the agreement on divorce consequences should be notarized with modifications to the existing prenuptial agreement. An internal agreement would be contestable.
Therefore, I advise you to discuss this with your wife and her parents, and come to an agreement on the division. Then, you can present this to a notary, so that they can draft a corresponding agreement on divorce consequences for you. In the agreement on divorce consequences, provisions for the divorce procedure can also be made. If you agree on all points, then for the procedure itself, you only need one lawyer and can internally share the costs for this. However, I must point out that the lawyer can generally only represent one party. It is only advisable to use one lawyer if all divorce consequences are regulated.
If your wife does not want to agree to a notarized agreement on divorce consequences, I recommend not making a written agreement and sticking to the existing prenuptial agreement. Whether your wife still has any claim against you would then have to be separately examined. As mentioned, contesting a prenuptial agreement is only possible and enforceable under strict standards.
I hope I could provide you with an initial legal orientation. If anything remains unclear, please feel free to ask again.
Yours sincerely,
Tobias Rösemeier
- Attorney-at-law -
