A postnuptial agreement is a safeguard couples can use after marriage to protect themselves during a divorce. The agreement is a legal contract that includes instructions on how assets are to be divided and what each party in the marriage can receive if they divorce. It can also be used for other provisions the couple must agree on when the document is created.
Some couples have discovered that postnuptial agreements are beneficial because they provide a clear understanding of what divorce will hold (if it happens).
Postnuptial vs. Prenuptial Agreements
You have likely heard of prenuptial agreements. These are created before marriage and tell each person how everything will be divided if they file for divorce.
Many people use prenuptial agreements to ensure they can retain the assets they brought into the marriage after divorce.
Postnuptial agreements are like prenuptial agreements. Both cover the same issues and situations and can be as detailed and specific about what will happen in a divorce. The biggest difference is that prenuptial agreements are created before marriage, and postnuptial agreements occur after a couple is married.
Prenuptial agreements are more well known; however, postnuptial agreements are just as effective at outlining what will happen if a couple divorces.
Another difference is that prenuptial agreements require both parties to have an attorney (separate from the other party). On the other hand, a postnuptial agreement can be completed by a couple with a single attorney. A caveat of this is that the postnuptial agreement will likely be scrutinized more since the court often wonders if the arrangement is in the best interest of both parties.
What to Include in Your Postnuptial Agreement
Much of what is accepted and honored in postnuptial agreements depends on the situation. However, some of the things included in a typical agreement include the following:
Asset Division
Each person in a marriage will likely have private property and assets from their life before getting married. They may also acquire property and assets during the marriage. The postnuptial agreement determines what happens to the assets during divorce.
Marital Debts
Debts include things like credit cards, annual subscriptions, mortgages, and more. A postnuptial agreement can be used to determine how debts are divided in divorce.
Spousal Support
A couple may agree that one person deserves support after divorce. This can be included in the agreement.
Child Care and Child Support
If you have children, you can include a section in your postnuptial agreement outlining issues like child support and custody. The instructions can be extremely detailed regarding what to do if you divorce.
Reasons to Consider Creating a Postnuptial Agreement
If you marry without a prenuptial agreement, there could be several reasons to create a postnuptial agreement. Some of the most common reasons include the following:
Planning for the Future
Some couples want clarification about what will happen in the future if their marriage ends. If a prenuptial agreement is not in place, a postnuptial agreement can be used to safeguard an unknown future.
Asset Protection for Self or Children
It is possible that one or both spouses may receive an increase in their financial situation due to a family inheritance or large promotion. If you want to protect your new income without sharing it with your spouse after divorce, a postnuptial agreement can secure this.
You can also use the agreement to protect your beneficiaries after divorce and ensure they receive specific assets.
Financial Irresponsibility
During the course of your marriage, one party may have legal or financial troubles their spouse wants to ensure does not impact their life in a potential divorce. An example would be if one spouse accumulated debt due to gambling. A postnuptial agreement can be used to ensure the other party does not have to repay this.
Spousal Support
During the course of a marriage, one spouse may support the other. This happens when children enter the marriage, and one party remains at home to care for them. If the couple divorces, the postnuptial agreement can be used to show that one party will receive ongoing or temporary spousal support.
How Do You Create a Valid Postnuptial Agreement?
A postnuptial agreement is a legal contract. Because of this, specific things must be included for it to be legally binding.
First, the postnuptial agreement must be in writing. A verbal agreement will not (usually) hold up in court. Additionally, both parties must read the agreement and show no signs of duress while it is being signed. If one party needed more time to read the agreement or if they were pressured to sign it, it may be considered unenforceable in court.
It is necessary for the agreement to be fair for both parties. If the agreement is unfair to one person, it will not be enforceable in court.
The postnuptial agreement should include complete and factual information. If false or incomplete information is included in the agreement, the court may not enforce it. The same is true for information one party withholds. An example will be if one party fails to disclose all their debts. In this situation, the postnuptial agreement may be deemed invalid.
Contact My Law Office for Help Creating a Postnuptial Agreement
As you can see, there are several situations where a postnuptial agreement may be beneficial. I can help evaluate your situation and if this document is necessary. Call my office to schedule a consultation to discuss your needs. I can help with postnuptial agreements and other family law matters you may have
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