A Postnuptial Agreement, or Postnup, is an agreement that a couple enters into after they are married – this includes civil union and legal marriage. This document often outlines many of the same things that a Prenuptial Agreement is created to address.
The Postnuptial Agreement can be tailored to your specific needs and will usually address financial rights and property ownership for each party in the event that the marriage ends. In cases of a Postnuptial Agreement, it’s imperative that there is full disclosure of all assets. Not disclosing all assets can render the document null. It’s also imperative that each party has their own representation and neither party is coerced into the agreement.
Questions the Postnuptial Agreement Addresses
Who does pre-marital property belong to in the event of a divorce? Legally, property can often be considered jointly owned once a couple is married, regardless of which spouse paid for or owned the property prior to marriage. With a Postnup, you can outline the exact ownership of any properties purchased prior to the marriage. You can also specify that “non-marital” property is not shared – for instance, an inheritance would only be owned by the spouse whose family member passed.
- Who owns property acquired during a marriage? Without a contract in place, property purchased during a marriage would belong equally to both parties. Some couples may decide to keep their finances completely separate. In other cases, couples might decide to split everything purchased or built during the marriage. The Postnuptial Agreement gives you a way to legally specify the way your property and finances will be handled during the marriage and in the event of a separation.
Who owns your business after a marriage? If you own a business or open one after your marriage, this agreement can help you specify whether or not your spouse is entitled to any portion of that business.
- How will you budget for your future? A Postnuptial Agreement doesn’t just answer questions to protect parties from a divorce, it can also be structured to help couples clearly itemize their financial goals for the future, such as retirement needs. These documents can be specific enough to include clauses for household budgets on a regular basis and they can delineate the portion of savings each spouse puts toward a future retirement fund.
How will alimony be handled? Different states have specific laws about how alimony or spousal support is handled, so any agreement needs to consider the state in which spousal support might be awarded. In some cases, spouses can’t waive their rights to spousal support. It should be noted, too, that spousal support is usually awarded when one spouse earns significantly less than the other or if one spouse foregoes their own monetary pursuits for the betterment of the household. One example might be a spouse who agrees to stay home to raise children or tend to an ailing relative during the marriage. Spousal support would be considered to help that party until they can comfortably build their income on their own.
- How will children from previous relationships be supported in the event this marriage dissolves? Often in cases of second marriages, there are children being supported by the couple who are not the biological children of both parties. A Postnuptial Agreement can determine how those children should be supported in the event that the marriage dissolves and assets are split. It can also address the possible inheritance of children in the event one of the spouses passes away.
Is a Postnuptial Agreement Right for You?
Postnuptial Agreements are very similar to Prenuptial Agreements, though they are entered into after the legal marriage has already taken place. In some cases, couples have a whirlwind courtship and marry without taking the steps to lay out a Prenuptial Agreement. This step would then only be taken to remedy that lapse after the wedding.
In some cases, there may be issues in an existing marriage due to a difference of opinion about finances or one spouse’s bad behavior. In those cases, a Postnuptial Agreement can be entered into to help the couple better communicate their wants and needs in hopes of strengthening the marriage. In all cases, it’s imperative that both spouses agree to the terms of the contract. If either spouse is coerced, it can nullify the agreement entirely.
You should use a Postnuptial Agreement If:
Practical:
- You were married without a Prenuptial Agreement and have concerns about financial holdings.
- There is a large difference between spouses in earnings or inheritance.
- You or your spouse was in a previous marriage that resulted in children.
Financial:
- Either spouse has a large amount of personal debt.
- You have earned a large amount of retirement benefits or contributed a significant amount to a pension plan prior to the marriage.
- There is a substantial difference in current and projected earnings between the two spouses.
- You want to legally agree to the budgetary responsibilities for each spouse going forward.
Property:
- You or your spouse owns property prior to the marriage.
- You or your spouse owns stocks or other assets that pre-date the marriage.
- You are the owner of a business or sole proprietorship.
- You have concerns about the impact of your new marriage on your financial or business holdings.
Family:
- You or your spouse have children from a previous relationship that you do not share biologically or legally.
- You or your spouse have received or expect to receive a substantial inheritance.
- You have agreed that one spouse will stay home to raise children or run the household.
- You have agreed that one spouse will take on the responsibility of caring for ailing or ill family members.
You should not use a Postnuptial Agreement if:
- The Postnuptial Agreement is too heavily in favor of one party. Both parties need to be in agreement on terms before signing.
- You are coerced or feel forced into signing a Postnuptial Agreement.
- You have not had legal counsel of your own. Both parties need to have access to their own counsel so that neither spouse is taken advantage of in this process. Not allowing legal counsel might be cause for the Agreement to be nullified by a court later.
- Neither spouse has sizable assets or property and neither has substantial debt.
- You want to direct the way alimony is allocated.
- You and your spouse agree with the default divorce laws in your state.
Why Use a Postnuptial Agreement? The Pros vs. The Cons
There are a number of good reasons to use a Postnuptial Agreement – the couple may not have realized that they needed one prior to the marriage or they may decide to use the features to help them create a healthier relationship.
The Pros: A Postnuptial Agreement can:
- Settle issues of property disbursement in the event of a divorce.
- Settle issues of alimony, should you not agree with the divorce laws in your state.
- Protect business assets in the event of a divorce. This can be especially important for small business owners where the splitting of a business can mean the business can no longer operate.
- Create a plan for financial support of children from previous marriages.
- Address questions of ownership for assets acquired during the marriage.
- Provide for a spouse who foregoes work to care for children, ailing family members, or to run the household.
- Set a budgetary plan for future finances and retirement.
- Protect family inheritance.
- Protect you from liability in your spouse’s debts.
- Protect you from costly divorce litigation in the future.
The Cons:
- This document can prevent you from being entitled to your spouse’s assets or property.
- Can prevent you from being entitled to any family inheritance.
- Depending on clauses, this document can mean a loss of alimony in the event of divorce.
- This document can be overturned in court if there is cause to do so – such as proof that a spouse was coerced or that there was not full disclosure of assets.
How to Make Your Postnup Valid
It’s important to check the laws of your state because each state may have specific requirements for Postnuptial Agreements. In general, there are a number of criteria that a Postnuptial Agreement needs to follow:
- It needs to be in writing. An oral contract is often difficult to enforce legally in any case. For a Postnuptial Agreement to hold weight in court, it needs to be a written document that both parties have had ample time to review.
- It needs to be signed and notarized. For the document to be legally enforceable, it needs to be signed by both parties and notarized to prove that the signatures are valid.
- It needs to be fair and reasonable. Postnuptial Agreements are usually entered into because one spouse earns or owns considerably less than the other. The agreement needs to protect both parties.
- There must be full disclosure of assets by both spouses. It’s important that all assets are known by both parties prior to signing the Postnuptial Agreement. If, for example, one spouse has hidden assets, it can nullify the entire agreement.
- Both parties agree to the terms of the Postnuptial Agreement. If either party is coerced, forced, or deceived into signing the document, it’s not enforceable. It’s important that both parties fully understand the document prior to signing.
In most cases, a Postnuptial Agreement will be upheld in the case of a courtroom challenge. Providing the agreement is entered into without deception and all parties had representation and understanding of the clauses, a judge will most often honor the Postnuptial Agreement.