Nebraska postnuptial agreement is a legal contract that allows married couples to determine how their assets will be divided if they divorce. These agreements are made after marriage, setting them apart from prenuptial agreements, which are signed before tying the knot.
While some states permit these agreements to outline property rights upon divorce or death, Nebraska’s postnuptial agreements are exclusively for couples contemplating divorce, providing a framework for asset allocation that a judge can incorporate into the final divorce judgment.
Legal Considerations
Chapter 42, and Chapter 30 of the Nebraska Code, govern aspects of marital agreements, including postnuptial agreements.
- Signing Requirements: Without explicit statutes or case law on signing specifics, best practice suggests documents should be in writing, signed by all parties, and ideally notarized, adhering to earlier standards for contracts, including those for property, which required signatures and notarization.
- Dividing Property: Equitable distribution.
- Enforceability: Generally, courts adhere to the terms of separation agreements. However, provisions related to the support and custody of minor children may be reviewed and adjusted by the court. A court might refuse to uphold an agreement if evidence suggests it is fundamentally unfair (§ 42-366(2)).
- Definition of Unconscionability: The determination of whether an agreement is fundamentally unfair, or unconscionable, depends on the specifics of each case (Colson v. Colson (1983)).
Asset and Property Rights
Business and Earnings
- A married woman may independently carry on trade or business, and her earnings are her separate property.
- She has the right to use and invest her earnings in her own name. [1]
Wife’s Separate Property
- A woman’s property before marriage, or acquired through descent, devise, gift (except from her husband), purchase, or otherwise, remains her separate property post-marriage. [2]
- Her property is not under her husband’s disposal nor liable for his debts.
- Exception: Property, excluding 90% of her wages, can be liable for family’s necessities debts after execution against the husband fails.
Capacity to Contract
- A married woman has equal rights as a married man to bargain, sell, convey her property, and enter into contracts.
- The obligations of her contracts are equivalent to those of a married man. [3]
Marriage and Divorce
Separation Agreement
Married couples have the option to draft a written agreement on several matters, including:
- Spousal support,
- The distribution of property owned by either spouse, and
- The care and custody of any minor children. [4]
Intention to Divorce
Couples cannot create postnuptial agreements that determine property rights in the event of a separation or divorce unless they intend to separate or are in the process of divorcing. [5]
Marriage Solemnized Out of State
A woman married outside the state retains her property rights acquired under other state laws or marriage contracts, upon her husband becoming a resident of this state. [6]
Estate Planning and Inheritance
Nonprobate Transfers on Death
- Provisions for nonprobate transfers in various instruments are nontestamentary.
- These include designations for post-death transfers, cessation of payments upon death, and passing of controlled or owned property to designated persons.
- Rights of creditors are not limited by this section under state laws. [7]
