Montana postnuptial agreement is a legal document that couples use to define the ownership and duties related to certain assets in the event of a divorce or death.
Unlike prenuptial agreements, which are executed before the marriage starts, postnuptial agreements are entered into after the couple has married. This can happen shortly after the wedding, sometimes within a few months, or it may take place several years into the marriage, highlighting their distinction from prenups.
Legal Considerations
Title 40 and Title 72 of the Montana Code, govern aspects of marital agreements, including postnuptial agreements.
- Signing Requirements: Must be in writing and notarized (§ 40-2-312).
- Dividing Property: Equitable division (§ 40-4-202).
Asset and Property Rights
Capacity to Contract
- A husband or wife can make deals with each other or others regarding property, which is a key aspect of postnuptial agreements. [1]
- Postnuptial agreements are only available to couples in confidential relationships, such as those not intending to divorce or those actively working on reconciling their marriage.
Marriage and Divorce
Separation agreement
- Separation agreements can be relevant in postnuptial agreements if spouses decide to separate before divorce or death. [2]
- Husbands and wives can’t change their legal relationship through contracts, except for property matters. However, they can agree in writing to separate immediately and decide how to support themselves and their children during the separation.
- While they can’t change their overall marital status through contracts, they can agree on property issues and separation arrangements.
Fairness Requirement
Any separation agreement found to be unfair or unjust (unconscionable) is considered invalid, as established in the case of In re Marriage of Myers (1984).
Waiver of Rights
- A surviving spouse can give up their rights to certain things like a homestead allowance or family allowance through a written agreement, but the agreement must be fair and voluntary.
- If a surviving spouse claims they didn’t agree to it willingly or the agreement was extremely unfair, the court can decide if it’s valid.
- If an agreement says “all rights,” it means giving up everything related to the other spouse’s property or estate. This includes what they might have gotten without the waiver, through the law or a will. [3]
