A postnuptial agreement is a type of agreement that allows married couples to determine what will happen to their assets if they divorced or if one of the spouses passed away. A postnuptial agreement is very similar to a prenuptial agreement, except that it is entered into after a marriage rather than before.
A postnuptial agreement, or post-marital agreement, is common in a marriage where both of the spouses each separately own a large number of valuable properties. These agreements are commonly used if one of the spouses acquires a particularly valuable asset after the marriage.
Although the majority of postnuptial agreements govern the division of marital property, they may also govern other important issues, such as the future division of debts and child support payments.
Which Is Better: Prenuptial Agreement or Postnuptial Agreement?
Neither type of agreement is necessarily a better option because they may be able to serve the same function. A prenuptial agreement is entered into before the couple marries.
After a marriage, the circumstances of the relationship may change. In many situations, postnuptial agreements are the result of these changes that occur after marriage.
Changes in a marriage relationship may include things such as one of the spouses receiving:
- A promotion;
- Stock options; or
- An inheritance.
These types of events may have a dramatic impact on the financial status of the marriage. A postnuptial agreement may also be used to amend a prenuptial agreement already in existence.
It is important to note that, in certain cases, a postnuptial agreement is subject to stricter examinations by a court because the individuals are presumed to have less bargaining power once they are married.
Why Do I Need a Postnuptial Agreement?
Postnuptial agreements are often created to provide terms of property division in the event that a marriage ends. There are also other situations in which a couple may create a postnuptial agreement, including:
- One spouse is a stay-at-home spouse;
- Requests from one spouse’s business;
- An inheritance; or
- Disputes over money.
If one spouse decides to remain at home and raise the children, they are completely dependent upon their spouse for their income. Postnuptial agreements may ensure that the spouse’s dependence during the marriage will not have a negative effect on their life if the marriage ends.
If one of the spouses is a business partner, the other partners in the business may want to ensure that a divorce will not cause any unwanted ownership problems, for example, the spouse being granted ownership rights in the company. An agreement may also keep the non-partner spouse from obtaining profits or other assets from the business.
In the context of an inheritance, in-laws may want to give property or assets to their child but not their child’s spouse. A postnuptial agreement allows an inheritance to be passed according to the wishes of the deceased.
Postnuptial agreements may also assist in disputes over money. Money is commonly a heated issue in divorce proceedings and a prenuptial agreement can ensure that both spouses are treated fairly if the marriage ends.
What Are the Requirements for a Valid Postnuptial Agreement?
The laws that govern postnuptial agreement validity vary by state. Postnuptial agreements, however, are essentially contracts and therefore, have to satisfy contract laws in order to be enforceable.
The majority of courts will generally look for the following postnuptial agreement requirements:
- Writing requirement: The postnuptial usually must be in writing in order to be valid because oral agreements are often not honored in court;
- The written agreement should be signed by both parties and notarized;
- Voluntary agreement: Both parties must voluntarily agree to the contract. Consent or signatures cannot be obtained using:
- threats;
- physical force; or
- fraud or deceit;
- Fair agreement: The agreement must be conscionable, meaning it is fair and equal between the spouses;
- Postnuptial agreements that are completely one-sided, or favor one spouse, are not considered to be valid; and
- Full disclosure: The postnuptial agreement must be made under conditions of full and accurate disclosure between the two spouses;
- For example, one party cannot conceal the existence of assets from the other spouse in order to obtain an advantage.
These requirements are in place to ensure that an agreement was not obtained by fraud or other unfair conditions between the spouses. For example, a written document may help to present a situation where one party attempts to change any terms after an agreement is made.
When reviewing a divorce claim, courts will typically use the written document as evidence to determine the intentions of the spouses.
Can I Write My Own Post Nuptial Agreement?
Technically, yes, an individual can write their own postnuptial agreement. The agreement is treated as a contract.
So long as it meets all of the contract requirements in the jurisdiction, a postnuptial agreement is legally binding, even if the parties wrote it on their own.
Similar to other contracts, however, postnuptial agreements may be challenged under circumstances, such as:
- Fraud;
- Duress, and possibly undue influence; and
- Unconscionability.
What Can I Do to Protect Myself in a Postnuptial Agreement?
If an individual is considering entering into a postnuptial agreement, there are several points they should consider, including:
- Read the written contract carefully before signing it. Check for any vague or questionable language in the agreement. If an individual has doubts about the agreement, they should consult with a lawyer who can review it before signing;
- If an individual’s spouse has already hired their own lawyer to write the agreement, then an individual should hire their own lawyer to represent them and examine the agreement on their behalf;
- Some courts consider it unfair if only one of the parties 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; and
- An individual should try to anticipate situations that may create disputes between them and their spouse in the future;
- For example, if children are involved in the marriage, an individual may wish to include provisions regarding child custody and child support.
It is important to always record the date of the agreement in the written document. This is because an accurate division of properties often depends on the date of the agreement.
It is also important to include dates on any revisions of the contract.
How Do I Terminate a Postnuptial Agreement?
As noted above, postnuptial agreements are like contracts and are subject to certain rules. They may also be terminated in certain situations, for example:
- If one of the parties signed under duress, or was forced to sign against their will;
- If one party does not provide complete disclosure of their assets; or
- If the agreement is unconscionable, or is grossly unfair to one of the spouses.
Do I Need a Lawyer for a Postnuptial Agreement?
Postnuptial agreements may be used for many reasons other than divorce, for example, estate planning or business allocations. If you are in a situation that requires a postnuptial agreement, it is typically necessary to consult with a family law attorney.
Your attorney can help you draft an agreement if you believe you need one. In addition, if you have already entered into an agreement, your attorney can review it and assist with any revisions.
Your attorney can ensure that your agreement meets all of the requirements of your jurisdiction and is in accordance with the contract laws in your state.
