Postnuptial Agreement Requirements
What is a Postnuptial Agreement?
A postnuptial agreement allows a married couple to determine what will happen with their assets in the event of divorce or the death of one of the spouses. Postnuptial agreements are very similar to prenuptial agreements, except that they are entered into after marriage rather than before.
Postnuptial agreements, or “post-marital agreements”, are common in marriages where the spouses each separately own a large number of valuable properties. They are also commonly used if one spouse acquires a particularly valuable asset after marriage.
While most postnuptial agreements deal with the division of marital properties, they may also cover such issues as division of debts and child support payments.
What are the Requirements for a valid Postnuptial Agreement?
The laws governing postnuptial agreements vary by state. However, postnuptial agreements are basically contracts and must therefore satisfy contract laws in order to be enforceable.
Most courts will generally look for the following requirements when enforcing a marriage agreement:
- Writing requirement: The postnuptial usually must be in writing in order to be valid. Oral agreements are often not honored in court. The written document should be signed by both parties and notarized
- Voluntary agreement: Both parties must voluntarily agree to the contract. Consent or signatures cannot be obtain through threats, physical force, or fraud/deceit
- Fair agreement: The agreement must be “conscionable”, or fair and equal between the parties. Postnuptial agreements that are completely one-sided are not considered to be valid
- Full disclosure: The agreement must be reached under conditions of full and accurate disclosure between the parties. For example, one party cannot conceal the existence of assets from the other spouse in order to obtain an advantage
These requirements exist to ensure that the agreement was not obtained fraudulently or under unfair conditions between the spouses. For example, having a written document may help to prevent situations where one party attempts to change any terms after the agreement is made. When reviewing a divorce claim, a court will usually use the written document as evidence to determine the spouses’ intentions.
What can I do to protect myself in a Postnuptial Agreement?
If you are considering enter into a postnuptial agreement, you should consider the following points:
- Always read the written contract very carefully before signing it. Check for any vague or questionable language in the agreement. If you have doubts about the agreement, you may wish to have a lawyer review it with you
- If your spouse has already hired their own lawyer to write the agreement, you should hire your own lawyer to represent you. Some courts consider it unfair if only one party to a contract is represented by a lawyer. A postnuptial agreement that was formed where only one spouse has a lawyer may not be enforceable
- Try to anticipate situations that might create a dispute in the future. For example, if children are involved in the marriage, you may wish to include provisions regarding child custody and child support
Finally, always record the date of agreement in the written document- an accurate division of properties is often dependent on the date of the agreement. Be sure to include dates on any revisions of the contract.
Do I need to hire a Lawyer for help with a Postnuptial Agreement?
In most situations that require a postnuptial agreement, it is also necessary to hire a lawyer. Again, postnuptial agreements can be used for a variety of reasons besides divorce, such as estate planning or business allocations. Be sure to ask your lawyer whether a postnuptial agreement is actually necessary, and what the contract laws in your particular state are.
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Last Modified: 03-23-2011 11:51 AM PDT
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