Many people have heard of prenuptial agreements, or prenuptial agreements that couples make before marriage to dictate what will happen in the event of a divorce. However, the prenuptial contract is not the only type of contract that can do this. Couples can also choose to create a postnuptial agreement.
But what is a postnuptial agreement? This guide explains how this type of contract works, when you might want to create a postnuptial contract and what a postnuptial agreement should include.
What is a postnuptial agreement?
A postnuptial agreement is a written contract that couples can choose to enter into after they are legally married. The agreement deals with legal issues that may arise in the event of divorce or the death of one of the spouses.
A “postnuptial” is similar to a prenuptial or “prenuptial” agreement in that it helps streamline the future divorce process and protects the financial interests of both spouses should the marriage end.
The main difference is that a prenuptial agreement is created before marriage while a postnuptial agreement is created during the marriage — sometimes years or decades after the wedding.
Why do you need a postnuptial agreement?
Couples can create a postnuptial agreement for many reasons. Some possible purposes for drafting this type of contract include:
- In anticipation of separation or divorce. If your marriage is in trouble, it may be best to address the issues that may arise in a divorce before You are moving forward with a breakup. Divorce is cheaper and faster if there is already agreement on many legal issues. You may be more able to compromise before Your marriage is progressing to the point where it can no longer be saved.
- To provide for the husband to stay at home. When one spouse decides to leave the workforce, this can limit their ability to earn in the future. The spouses may decide to draft an agreement that protects the person who does not earn by guaranteeing that person a certain amount of support or access to certain marital assets in the event of a divorce.
- To protect inheritance. If one spouse inherits a significant amount of money, the post-nuptial stage can dictate how it is divided upon divorce. By default, an inheritance left to only one spouse during marriage is considered to belong to that person separately, even in community property cases. However, if the inheritance is commingled with joint funds, it may become marital property and be subject to division in divorce. If both spouses have a postnup in place, the postnup overrides the standard property division rules that otherwise apply.
- To waive inheritance rights. A widow (widow) was usually entitled to a certain portion of her deceased husband’s property. This is called the optional wife’s share. There are some circumstances in which a person may want to compromise on this, such as a late marriage and a desire to protect the inheritance of children from a previous relationship. A postnuptial agreement can be used to waive inheritance rights.
- To protect business. If one spouse starts a business during the marriage and wants to ensure that the other does not have a financial interest in the business in the event of a divorce, a postnuptial agreement can be created.
- To amend a prenuptial agreement. If you entered into a prenuptial agreement and would like to change its terms, a postnuptial agreement allows you to do so.
- To ensure the payment of gifts. If a couple receives a large sum of money, such as a down payment for a home from one spouse’s parents, a postnuptial agreement may be important to ensuring that the spouse can recover those assets in the event of a divorce. For example, if the spouse’s parents make a down payment of $50,000, the postnuptial can determine that the spouse will receive the first $50,000 of marital assets to recoup the money gifted.
You may also want to create a postnuptial agreement in an effort to help keep the relationship intact. For example, if one spouse is unfaithful and wants to show his commitment to restoring the marriage, the spouses can create an agreement that will provide a more favorable divorce settlement for the other spouse in the event of future infidelity.
What should be included in a postnuptial agreement?
The postnuptial agreement should address most of the major issues that may arise upon divorce. Among the things that the spouses must include in their contract are the following:
- What is property is separate property and what is property is marital property
- How marital The property will be divided in the event of a divorce
- What will happen to the marital property if one of the parties dies?
- How will marital debt be divided between spouses in the event of divorce?
- When and if either spouse will receive alimony How will the amount of spousal support be calculated?
A postnuptial agreement may also contain other clauses that both parties agree to regarding how the divorce will occur.
A contract must always be in writing to be considered valid and enforceable. Each spouse must also have independent legal counsel, the opportunity to review the document before signing and obtain a financial declaration before signing.
What should not be included in Postnup
While postnuptial agreements can address many of the issues that are likely to arise in a divorce, they cannot necessarily address all of them.
Specifically, provisions relating to Child Custody Support is not enforceable in most states. Parents cannot waive child support rights, and custody is not determined based on what the spouses say in a private postnuptial contract created beforehand but instead based on what is in the best interest of the child at the time the divorce occurs.
Provisions contrary to public policy and clauses intended to regulate routine aspects of the marital relationship may not be enforceable if included in a postnuptial agreement.
Is a postnuptial agreement enforceable?
A postnuptial agreement is enforceable if both parties voluntarily sign a written agreement. However, there are circumstances in which the court may refuse to enforce the contract in the event of a divorce. This can happen in the following cases:
- If either party signs the contract under fraud, duress, or based on materially misleading data
- If the agreement turns out to be unreasonable, it means that it is so unfair to one of the parties that it shocks the consciousness
- If appropriate financial disclosures are not provided before signing the agreement, it may not be enforceable
- If each of the spouses does not have an independent lawyer in the country that requires this
Provisions contrary to public policy will not be enforced.
How do you write a postnuptial agreement?
The best way to write a postnuptial agreement is to get help from an experienced attorney who can help you draft an enforceable contract that protects your interests. You should contact a family law attorney as soon as you believe drafting a postnuptial application is right for you.
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