What Is a Postnuptial Agreement?
A postnuptial agreement is a marital contract couples can make after tying the knot. Traditionally, it shares many of the same characteristics as a prenuptial agreement, serving as a binding pre-understanding between two spouses. Much like a prenuptial agreement, a postnuptial agreement can address common concerns that arise in any relationship, including the division of property or spousal support in the event that a marriage dissolves. However, this type of agreement does little to avoid or deter a divorce; rather, it addresses the handling of marital assets for situations that may arise in the future. A prenuptial agreement is more of a precautionary measure taken before a marriage begins , while a postnuptial agreement actually addresses post-marriage concerns. So, why would a couple want to enter into a postnuptial agreement if they’re not considering divorce? There are a few reasons: Even if you do not have a clear reason for why you and your partner need a postnuptial agreement, such an arrangement can still pay off in the long run. A postnuptial agreement, much like a prenuptial agreement, can help to protect marital assets from a frivolous or unwanted future claim. Whatever your reasons for pursuing a postnuptial agreement, however, it’s important that you enter into the arrangement for the right reasons and fully understand its benefits and legal implications.
Key Elements of a Postnuptial Agreement
When entering into a postnuptial agreement, the parties can address a wide variety of issues that are pertinent to their particular circumstances. Some of the most common components of such agreements include the manner in which the parties intend to divide their assets should they decide to divorce. They can contain information about the division of property, distribution of bank accounts, and how non-marital property will be treated. Such provisions seek to clarify the more uncertain aspects of property division in a divorce, such as what constitutes separate property or the need to analyze the spouse’s contribution toward property gain as opposed to market fluctuation as examples.
Postnuptial agreements also typically address the matter of debt responsibility. Further, similar to asset division, it may establish that the parties will retain responsibility for certain debts, such as student loans they brought into the marriage, while other obligations will be shared and accordingly divided. For example, a postnuptial agreement can provide that two parties brought to the marriage debt, such as student loan debt for one and credit card debt for another, but the parties will share future expenses jointly and equally, such as potential mortgage debt for a house they purchase together. Another example of a term that is frequently included pertains to spousal support, as the parties can agree that should they divorce, the appropriate amount of spousal support to which one is entitled will be a specified figure. This can be higher or lower than the spousal support the parties would be entitled to under state law in the absence of such an agreement. In general, a postnuptial agreement can address any and all issues that are commonly addressed in a divorce, except for child-related issues.
The most important consideration when drafting a postnuptial agreement is that the terms be clear and fair to both parties. When entering into a postnuptial agreement, it is a good idea to consult with an experienced and knowledgeable matrimonial attorney to ensure that you fully understand the legal implications of your agreement. A skilled matrimonial attorney can also help evaluate the fairness of the provisions contained within, as under state law, a divorcing party can challenge a postnuptial agreement based on the existence duress or coercion.
Requirements and Considerations
As in the case of a prenuptial agreement, state laws will dictate the legal requirements for enforceability of a postnuptial agreement. However, in general, a postnuptial agreement must be entered into voluntarily by both parties and without concealing substantial assets. In many states, a postnuptial agreement must be unconditional. This means that the benefits each spouse is entitled to in the event of divorce or death must have been established prior to entering into the agreement. Postnuptial agreements entered into pursuant to financial hardship requirements are unenforceable in many states unless unconditional. Lastly, postnuptial agreements are unenforceable if one party did not have a fair opportunity to review their terms. A postnuptial agreement, just like a prenuptial agreement, must meet the state law requirements for a contract in order for it to be legally binding. These requirements include mutual consent, full disclosure, and independent legal advice for both parties. A party may waive any of these requirements, however, if a judge determines that it would be unfair to require them in a specific case.
Using a Sample Postnuptial Agreement PDF
Downloading a sample postnuptial agreement PDF is only the first step in the process. After you’ve identified one that looks like a good fit, download it to your computer and open it in Microsoft Word or your word processor of choice. Do NOT simply print it out and fill in the blanks by hand. It is very difficult, if not impossible, to go back and make edits once you’ve filled out a postnuptial agreement by hand.
Before you can send the documents for signatures, you’ll need to customize each section, replacing "[Insert Text Here]" with the appropriate information. There may also be sections that include sub-paragraphs (1a, 1b and 1c , for example). After replacing the sample text with your information, review the entire document for accuracy. Errors here could lead to issues down the line that could have been avoided.
If you’ve reviewed the postnuptial agreement and customized it thoroughly and you feel confident entering into this type of contract, contact an attorney to draw up the official agreement. While a sample postnuptial agreement PDF is a good starting point, it should never be considered legally binding or complete. An experienced attorney can sit with you and explain everything in clear terms, rewriting where necessary to reach a successful agreement that works for your unique situation.
Common Errors to Avoid
Common mistakes often made in a postnuptial agreement are numerous, and it is tempting to skip on legal advice. After all, you are both still together, and there is no need to look forward to divorce, is there? Well, predictable, but also unpredictable circumstances could change any moment, and even the happiest and most committed seem capable of divorcing at any point. Also, even though you have agreed to everything, unless you have it in writing, it is not legally binding, and could leave both of you financially exposed in case things go bad.
Get it in writing
When you agree on something, putting it down on paper doesn’t have to be a lot of extra work. You’ve both agreed to it so you should just put it down so that future in-laws, the IRS, or even you both don’t get confused. And be specific about it. To ensure admissibility in court, make a "defining list" of things that each of you own, their worth and if they were jointly owned or owned before you were married. You’ll also need to disclose any income and debt before the marriage. These are very vital details for your attorney to include in the document.
Forgetting to update
You don’t get a single paperwork when you get married, right? It’s not like you both sign one contract at the altar and then you’re done forever. For a postnuptial agreement to be useful, it needs to include a completion date that will allow for regular updates. You are both constantly evolving as a couple, and your circumstances will change as you both evolve and as finances come and go from your lives. For instance, you’ve both been childless for 5 years, and you draft a postnuptial agreement. Obviously, you should include an option to add terms should you decide to have children in the future, especially when it comes to issues like child support, custody, and parenting time. That said, a postnuptial agreement is not a custody agreement, so you need to be careful how it is worded so you don’t accidentally write out any future needs your kids may have.
Running off with your hands
No matter how much you love a person enough to marry them, it’s common sense to know that it takes two to have a lawyer involved with signing an agreement. So, the first thing to do is to sit down with your spouse and as a couple to draw up the agreement between the two of you. You both have to agree on it, and you both have to sign it together. If only one of you goes to the attorney, then the other, after you’ve signed, is going to have legal recourse to nullify the entire agreement that you’ve both agreed to just so that you can do something you agreed on without them.
Not getting the right lawyers
One thing that is a definite red flag is when one party gets the wrong lawyer. You should both have your own representation on the document, and you should both have attorneys who are not going to get you into trouble. If you both have the same lawyer, or the lawyer belongs to one of the parties (like a father, or one of the in-laws), then you’ve made a horrible mistake. You need separate teams of independent lawyers to help you understand what you’re signing, and the consequences of signing it.
Using vague language
We know you don’t want to spend 3 years going through the postnuptial agreement with a fine-tooth comb, but if you see something that isn’t clear, you should not gloss over it and assume it means something you think it does. Cross out the parts that aren’t clear and be very specific or at minimum, add an addendum later that fully explains it.
FAQs
As with any legal document, postnuptial agreements can be confusing. Whether you have drafted drafts a postnuptial agreement or are considering drafting one, the following are the most common questions that couples have:
How long should I have a postnuptial agreement?
While there is no hard-and-fast answer to this question, what is important is to have a postnuptial agreement before you need it. If you wait until you have a contentious period in your marriage, it is likely that the agreement will not be voluntary, and the agreement will be held unenforceable.
Does a postnuptial agreement really cover what we discuss in mediation?
Yes. You may be surprised to learn just how much a postnuptial agreement can cover. For example, you can agree to services of any kind in exchange for other things. You can contract on whether you will keep retirement assets that are accrued during the marriage. You can even decide what will happen to your marital home (if any) in the event of death.
Can you get out of a postnuptial agreement?
It is possible to free yourself from the requirements of a postnuptial agreement. However , doing so usually means going through a complete renegotiation of the terms of the previously agreed-upon contract.
Will the terms of a postnuptial agreement hold up in divorce court?
Though postnuptial agreements are enforceable, the testifying and judges ultimately decide whether or not they will uphold a postnuptial agreement and its terms in the event of divorce. But provided that the document meets the necessary conditions, including intent, consideration, and complete and voluntary agreement, the terms will likely survive.
Will a postnuptial agreement help in divorce court?
Postnuptial agreements do not eliminate the need for a divorce lawyer. However, they will ensure a few things that will help your case in the courtroom:
Ensures all assets are accounted for and distributed.
Ensures that both of you follow your pathways for distribution.
Helps in cases of bankruptcy.
Helps you to complain less about the divorce, and stay on task in telling the judge what you want.
Speeds up the process of preparing for and undergoing divorce.