Postnuptial Agreement Requirements

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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:

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:

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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