A postnuptial agreement, also referred to as a post-marital agreement, is a contract between spouses and is entered into during marriage. Similar to prenuptial agreements, postnuptial agreements contain provisions on how to divide property and income in the event of separation, divorce or death.
Most states recognize postnuptial agreements, although the rules vary from state to state. Some states have explicit laws governing postnuptial agreements (e.g. Minnesota) while other states allow postnuptial agreements implicitly, through the use of contract laws (e.g. Pennsylvania). In the event of no applicable law, some courts will use case law to determine the validity of postnuptial agreements.
To increase the likelihood of enforceability:
Prenuptial agreements are entered into before marriage. In contrast, postnuptial agreements occur during marriage and are often prompted by financial changes in the relationship. A promotion on the job, stock options, or an inheritance can dramatically impact the financial status of a relationship. Additionally, a postnuptial agreement can be used to amend a prenuptial agreement that is missing important provisions. Lastly, postnuptial agreements sometimes receive stricter examinations by the court because individuals are presumed to have less bargaining power once married.
As stated earlier, the reason most couples create a postnuptial agreement is to determine how to divide property and income in the event something tragic happens. Although this definition explains when a typical postnuptial will trigger, the following are reasons why a couple might want to write a postnuptial at all:
Although there is typically no statute forbidding child custody or child support in a postnuptial agreement, courts have the last word in enforcing a contract. Judges are reluctant to enforce child custody or child support through a postnuptial because child custody and child support are suppose to be decided according to the child’s best interest.
A postnuptial agreement, on the other hand, is about the best interests of the spouses. The best interests of the parents are not always the same as the best interests of the children, especially in highly emotional situations where the parents aren’t thinking clearly. Alimony / spousal support however, is often addressed in postnuptial agreements.
Postnuptial agreements are just contracts and like all contracts, are subject to certain rules:
Postnuptial agreements can be complicated and difficult to understand. An experienced family law attorney can help you understand your rights and how to protect your interests. A family law lawyer can also represent you in court if a dispute arises.
Last Modified: 02-22-2016 11:33 AM PSTLaw Library Disclaimer
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