Post-nuptial agreements drawn up by spouses after they marry can provide substantial legal protections due to more restricted terms of the agreement.
Understanding Post-Nuptial Agreements
When couples decide to marry, they often choose to enter into pre-nuptial or post-nuptial agreements to provide guidelines for control of finances, assets, and debts. If controversy arises regarding a pre-nuptial agreement, signed prior to marriage, a couple can simply choose not to get married. However, if controversy arises regarding a post-nuptial agreement, things are not that simple. A post-nuptial agreement creates a fiduciary duty between spouses, because the couple is already legally bound.
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Unlike pre-nuptial agreements that date back centuries, post-nuptial agreements were usually not enforceable prior to the 1970s. Post-nuptials were considered negative documents because they encouraged divorce. In the last few decades, family law attorneys have witnessed more post-nuptial agreements with the enactment of “no fault” divorces.
In post-nuptial agreements, specific provisions are governed by state laws. Common provisions in such agreements include:
- Division of physical property
- Division of financial assets and debts
- Spousal support payments
- Financial support for minor children
- Child custody for minor children
- Division of assets in case of death
Although post-nuptial agreements address support and custody of minor children, state laws can restrict these provisions. Some state laws say that post-nuptial agreements that attempt to limit or restrict child support or child custody will be deemed legally unenforceable.
A family law attorney often handles post-nuptial agreements when couples want to modify an existing pre-nup that is outdated. If one spouse inherits property or forms a business after marriage, a post-nuptial agreement can provide financial protections. It can also protect certain family inheritances from becoming marital property, if a spouse’s parents die during his/her marriage.
Post-nuptial agreements are legally binding documents that should be drawn up by a family law attorney who understands the impact of state laws. To be valid and enforceable, post-nuptial agreements must meet basic requirements.
Valid Execution
Post-nuptial agreements must be in writing and signed by both spouses with notarized signatures. Some state laws also require a witness to be present for signatures.
Voluntary Execution
Both spouses must sign the post-nuptial agreement voluntarily and intentionally. Any indication that one spouse was threatened or coerced makes the post-nup completely null and void.
Disclosure
Full and fair disclosure by each spouse is required. Each spouse must make full disclosure of his/her assets, liabilities, and income. Incorrect information will make the agreement legally unenforceable.
