An Arkansas postnuptial agreement is a legal document that couples enter into after they get married to outline the division of assets and responsibilities in the event of divorce or death.
Unlike prenuptial agreements, which are established prior to marriage, postnuptial agreements allow couples to adjust to changing circumstances and handle financial matters pertaining to property, debts, and other crucial aspects.
Legal Considerations
Postnuptial agreements are governed by the Arkansas Code Title 9, Subtitle 2, Chapter 11.
- Signing Requirements: Both spouses are required to sign the agreement voluntarily (Stewart v. Combs, 368 Ark. 121, 243 S.W.3d 294 (Ark. 2006)).
- Dividing Property: Equitable distribution (Franks v. Franks, 548 S.W.3d 871, 2018 Ark. App. 266 (Ark. Ct. App. 2018)).
Understanding Postnuptial Agreements in Arkansas
Level of Scrutiny
- Postnuptial agreements must be assessed according to fundamental contract law principles, yet they undergo close examination to guarantee fairness and equity.
- The inherent confidential relationship between spouses prohibits them from conducting negotiations at an “arm’s length.”
§ 9-11-503 – Rights Generally
- Married individuals retain the right to manage their separate personal property, engage in business activities, and provide services independently.
- Earnings obtained through trade, business, labor, or services are considered the individual’s sole and separate property, eligible for personal use or investment under their own name.
- Spouses possess the legal capacity to initiate legal actions or be subject to legal proceedings within the state courts regarding their property, business, or services.
§ 9-11-301 – Execution of Contract
- Any marriage contracts aiming to convey or secure any real or personal estate or potentially impact the estate in legal or equitable terms must be documented in writing.
- Such documentation requires acknowledgment by all parties involved or verification through one or more subscribing witnesses.
§ 9-11-302 – Acknowledgment or Proof
- Marriage contracts are to be acknowledged or proven in front of a court of record, a judge or clerk of such court, or a former judge who served for at least four years in the state where the contract is established and executed.
- This acknowledgment or proof process must adhere to the same standards as deeds of conveyance for lands as prescribed by law.
§ 9-11-303 – Recordation – Effect
- Any marriage contract involving the conveyance or securing of real estate must be recorded, along with the certificate of proof or acknowledgment, in the office of the clerk and recorder of each county where the affected estate is located.
- Upon depositing a marriage contract for record with the county recorder, it serves as comprehensive notice to all individuals regarding its contents, particularly concerning real estate in the county of deposit.
§ 9-11-304 – Effect of Unrecorded Contract
- A marriage contract cannot exert validity or impact on property unless it is deposited for record with the clerk and recorder of the county where the real estate is located.
- The contract is legally binding only between the involved parties and individuals who possess actual notice of its existence.
§ 9-11-305 – Contract or Copy as Evidence – Conclusiveness
- Once duly proved, acknowledged, certified, or recorded, marriage contracts are admissible as evidence in any state court of record without requiring further proof of their execution.
- If a court finds that a duly acknowledged, proved, and recorded marriage contract is lost or inaccessible to the party seeking to utilize it, a certified copy from the clerk and recorder may be accepted as evidence.
- It’s important to note that neither the certificate of acknowledgment nor the probate of any marriage contract, nor its record or transcript, is deemed conclusive; they may be challenged or refuted.
