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.
Are Postnuptial Agreements Enforceable?
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:
- Each spouse should be represented by separate and independent lawyers
- Each spouse should fully and honestly disclose to the other all their property and income
- The couple should have the agreement in writing
- The agreement avoids issues of child custody and child support
Which Is Better: Prenuptial Agreement or Postnuptial Agreement?
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.
Why Do I Need a Postnuptial Agreement?
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:
- Stay-at-home spouse: a spouse who decides to stay at home to raise the children will be completely dependent on the other spouse for income. A postnuptial will assure the stay at home spouse that the dependence will not ruin that spouse’s life if the marriage ends.
- Pressure from business partners: If a spouse is operating a business with partners, the partners may want assure that a divorce will not cause unwanted ownership problems.
- Inheritance: In-laws may want to pass property or assets to their children but not their children’s spouse. Postnuptial agreements allow inheritance agreements to be structured in a way that respects the wishes of the deceased.
- Arguments over money: Finally, a postnuptial agreement might actually save a marriage. Money is often a bitter point of contention between couples and a postnuptial can assure both spouses that if a marriage ends, they will both be treated fairly.
Why Can’t a Postnuptial Agreement Include Child Custody or Child Support?
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.
How Do I Terminate a Postnuptial Agreement?
Postnuptial agreements are just contracts and like all contracts, are subject to certain rules:
- Duress – both parties must voluntarily consent to the agreement. If a party is forced into the contract, the contract will not be valid.
- Non-complete disclosure – both parties must give full disclosure as to their assets. Failure to do so will jeopardize the legality of the agreement.
- The agreement must be “consciousable”; the agreement must be perceived as fair to both sides.
- Many states require that a postnuptial agreement be in writing. Prenuptial agreements do not carry this prerequisite.
Do I Need an Attorney to Draft a Postnuptial Agreement?
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.