Do I Need a Postnuptial Agreement?
While most people have heard of a prenuptial agreement, they might not be as familiar with a postnuptial agreement. Also referred to as a post-marital agreement, it is a legal document for couples who are already married. In the event of a divorce, this document will define how assets should be divided.
Postnuptial agreements are a relatively new legal document. Prior to the 1970’s they were typically not enforceable because a couple was viewed as a single entity after marriage and as such could not enter an agreement with itself. Additionally, they were often viewed in a negative light because people believed that they encouraged divorce. As no-fault divorce statutes became more common in the 70’s, these agreements became more common.
Creating a Valid Postnuptial Agreement
In order for a postnuptial agreement to be enforceable, it must meet several basic requirements.
- In writing – An oral agreement is not valid, therefore an enforceable postnuptial agreement must be in writing.
- At will – Both individuals must willingly and intentionally sign the postnuptial agreement. If coercion is suspected, the agreement will not be valid.
- Full disclosure – Because a postnuptial agreement will define how assets, liabilities and support are handled if the marriage were to end, each spouse is required to provide full and fair disclosure of all such income when the agreement is drawn up. If one or both parties provides inaccurate information, the agreement may not be enforceable.
- Executed properly – Most states require that a postnuptial agreement contain signatures as well as notarization. In order to be enforceable the document must be legal in the state of residence of both individuals.
Elements of a Postnuptial Agreement
A postnuptial agreement often contains many of the same provisions that would be included in a prenuptial agreement. The only real difference between the two is when they are drawn up (prior to marriage vs. during marriage). The most common components of the agreement include:
- How property and other assets will be divided if the marriage ends
- If support will be paid by either spouse, as well as how much and how long the payments will commence.
- How debts such as mortgages, credit card debt and other loans will be divided.
- If either spouse dies during the marriage, the postnuptial agreement may define how assets will be passed along. This provision could vary depending upon if divorce proceedings are underway when the spouse passed.
- Custody and support of minor children if applicable.
If you and your spouse are considering creating a postnuptial agreement, it is important to work with a qualified family law attorney. Contact the team at McLario, Helm, Bertling & Spiegel for a free consultation.