Everybody has heard of prenuptial agreements. They’re binding contracts signed prior to a marriage taking place, usually outlining the separation of property and any spousal support in case the marriage ends in divorce. Ask anybody who has been through a divorce about whether a prenup is a good idea and they’re likely to tell you that they wish that they’d had one … and that may be why a survey conducted by the American Academy of Matrimonial Lawyers showed that postnuptial agreements are becoming popular. Postnuptial agreements are crafted and signed once the marriage has already taken place and are usually either a result of some kind of problem between the spouses or a realization that financial responsibilities and separate properties need to be defined.
Postnuptial agreements can clarify a variety of issues in case the marriage dissolves. These include:
Postnuptial agreements that are fair, in writing and signed by both parties generally stand up in court as long as they were entered into voluntarily and there has been full disclosure of all assets and financial responsibilities. Restrictive or punitive terms regarding child custody or child support are generally unenforceable. Should a marriage break down and a postnuptial agreement be submitted to the court, a judge will review it to ensure that this is the case.
Though postnuptial agreements can solve many problems, they are not always a good idea. Many times, a spouse that has significantly more assets or power within a relationship will attempt to create a postnuptial agreement that limits their obligations to their partner in anticipation of what the courts would impose. For this reason, it is essential that each spouse has their own attorney review the terms of the contract prior to agreeing to any terms or signing off on the document. This is particularly true if one partner has presented the other with a document that has been prepared without a prior agreement to what it will contain.
As is true with every contract, it is important that you read a postnuptial agreement carefully and have your own divorce or family law attorney review it prior to signing. Do not trust another person’s assertions that its terms are fair, as once you have signed there is little that can be done to protect you. For legal guidance on this and other family law matters, contact us to set up a time for a consultation.