More and more couples these days are planning for the worst by creating a postnuptial agreement. This is different from a prenuptial agreement as it is done after the couple is married and not before.
According to an American Academy of Matrimonial Layers 2015 survey, postnuptial agreements are growing in popularity. No matter if you are the one initiating, or your spouse desires a postnuptial agreement, it is important to understand what they are and how it will impact you.
Here is what you need to know.
What is a Postnuptial Agreement?
Having a postnuptial agreement is not the right decision for every couple. A couple might choose to get one when one spouse’s behavior is struggling or a spouse is out of control spending money during the marriage.
Some might find it helpful, even when the marriage is going well, to help to define assets such as money, separate properties, financial responsibilities, or rights to family businesses. While it might feel like it could be a diving decision for a couple, it could help to bring peace of mind that can be healthy in a marriage.
What is Included in a Postnuptial Agreement?
Typically, a postnuptial contract will include issues like: certain property, alimony, responsibility for marital debt, and how to divide property and assets if one spouse dies during the marriage.
Requirements for Postnuptial Agreements
Each state has slightly different requirements for postnuptial agreements. In general, most postnuptial agreements should have the following criteria:
- In writing
- Voluntary – It cannot be forced by the spouse
- Full disclosure
When Your Spouse Requests a Postnuptial Agreement
If your spouse would like to have a postnuptial agreement, it is important to make sure that you contact your own lawyer. While it can feel silly at the time, it is important to make sure that there is no conflict of interest.
That means that you cannot have your spouse’s attorney represent you both. Your own attorney should review the agreement and tell you whether it is fair or not.
In states like California, some judges will not enforce a postnuptial agreement where only one attorney is involved. Having an attorney review the postnuptial agreement will help you to understand important terms and legal rectifications. It is easy to miss crucial details when you are not use to reading such contracts. The terms can be negotiable before you sign. However, once you signed it can be difficult to reverse.
What is Not Covered in a Postnuptial Agreement
When it comes to issues like child custody or child support, a postnuptial contract cannot cover these topics. Other items it cannot address is if the spouse is required to commit illegal acts or fraud. If the agreement is unfair, unclear, doesn’t meet the requirements, or is signed under threats of violence, a judge will not enforce it.
Seek Legal Advice
Depending on whether you want a postnuptial agreement or your spouse does, you will need to have a legal voice. You can expect your attorney to write your postnuptial contract and review your spouse’s proposed postnuptial agreement.
Make sure to ask your lawyer many questions. Examples of questions you may like to ask include:
- Will the postnuptial contract follow you if you move?
- Can my spouse offer me money in exchange for signing a postnuptial contract?
If you have questions about a prenuptial or postnuptial agreement and need help, please call my office today. It is imperative to have someone by your side looking out for your best legal interests.
248-348-7400 or 586-530-1000