What is a Postnuptial Agreement?

Marriage marks the union between couples. It is when the love between two people creates a legal bond in the eyes of the law. This union creates legal implications. 

Among them are the shared responsibilities of the spouses and ownership of marital assets, real estate, personal finance properties, bank accounts, and debts.

But couples must remember that they can control the legal implications of their union. The couple may agree on the contents of their legal documents. It can contain the terms of the asset division and other issues, such as child support and child custody, to take effect if their marriage ends.

Although “prenuptial agreement" is the more common form, there is also one called “postnuptial agreement." As the name suggests, the couple enters prenuptial agreements before marriage. On the other hand, they agree upon postnuptial agreements after the marriage ceremony.

This article will talk in detail about postnuptial agreements. Below are the topics discussed in this article:

  • The Difference Between Prenuptial and Postnuptial Agreements
  • When Is the Postnuptial Agreement Applicable?
  • What Items Can You Include in the Postnuptial Agreement?

The Difference Between Prenuptial and Postnuptial Agreements

A prenuptial agreement is a legal step taken by couples before getting married. The agreement establishes the division of assets, financial rights, and other matters in the event of a divorce. This agreement also protects family businesses, avoids shared debt, and provides guidance on each spouse's financial responsibilities during the marriage. Prenuptial agreements are also called “pre-marital agreements" or “prenups."

Meanwhile, spouses contract postnuptial agreements after marriage. In some cases, they sign it years after getting married. It contains a fair disclosure of the couple's financial circumstances and the division of assets and liabilities in the event of divorce. The agreement may also detail the couple's responsibilities to children and other obligations during the marriage. Postnuptial agreements are also called “post-marital agreements" or “postnup."

The postnuptial gained more recognition in the United States after more states adopted the “no-fault" divorce laws. Although postnups and prenups are somehow similar, they have differences. It is always best to consult a family law attorney to understand these contracts better if in doubt.

When Is the Postnuptial Agreement Applicable?

Sometimes, prenuptial agreements may sound anti-climactic, particularly with the idea of an everlasting commitment that couples have during the wedding. Thus, couples would often bypass this process altogether. But, after the excitement of the wedding ceremony, it is common for couples to revisit the idea of having a legal agreement.

A postnuptial agreement can also appeal to couples considering a legal separation, annulment, or divorce. It is a way to make the process easier and reduce the legal fees. When this happens, the agreement may include topics like the division of separate property and community property, spousal support, and others. They can incorporate the postnup into the divorce decree. A disclaimer, however, is that courts have the discretion to modify or reject these previous agreements, especially in cases where the court finds it unjust or the legal contract is not entered in good faith.

Married couples with existing prenups may also use a postnuptial agreement to change the terms of their prenup.

Other reasons married partners may choose to sign a postnuptial agreement include the following:

  • To guarantee that children from previous relationships inherit certain assets
  • In the event that one of the parties, after the marriage, has taken on considerable debt or made irresponsible financial decisions
  • When one of the spouses stops working to care for minor children. Thus, the spouse would like to secure some financial resources during a divorce
  • Simply as a means of defining each party's wishes for assets brought to the marriage

What Items Can You Include in the Postnuptial Agreement?

Most postnuptial agreements include provisions related to the following:

  • Division of property and assets after divorce
  • The parameters for spousal support
  • Division of debts
  • What happens to assets after one party's death

Some states may impose restrictions on the division of marital property in a prenuptial agreement. But these restrictions are usually related to the right to alimony rather than property division per se.

Certain conditions, regardless of the contents of the postnup, may invalidate it, such as:

  • There is no written agreement
  • The agreement is fraudulent or entered under misrepresentation
  • Unequal bargaining power among the parties
  • One of the parties was pressured or signed under duress
  • One of the parties wasn't given the proper opportunity to read, understand, and consider the agreement
  • Lack of financial disclosure
  • There are invalid provisions contrary to public policy
  • Contains false or incomplete information
  • Lack of independent counsel (in certain states, such as Minnesota and South Carolina)
  • The agreement is "unconscionable" (grossly unfair to one party)

These rules can be complex and may vary by state. Thus, consulting with a family law attorney can help you understand the rules and regulations better.

Do You Need a Postnuptial Agreement? Consult a Family Law Attorney

A valid postnuptial agreement is one of the ways to secure each spouse's assets and have peace of mind.

If you want to learn more about post-nuptial agreements, we recommend consulting a family law attorney. They can guide you through the intricacies of postnuptial agreements. They can provide personalized legal advice under your state law, tailored to your unique circumstances.

Learn more about postnups from an experienced family law attorney near you.

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Can I Solve This on My Own or Do I Need an Attorney?

  • Many people can get married without hiring legal help
  • Marriages involving prenups, significant debt, child custody issues, and property questions may need an attorney

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Don't Forget About Estate Planning

Marriage is an ideal time to create or change your estate planning forms. Take the time to add new beneficiaries (including your spouse!) to your will. Consider creating a power of attorney to ensure your spouse can access your financial accounts. Also, a health care directive lets your spouse make your medical decisions if you ever become incapacitated.

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