Postnuptial Agreement

A Postnuptial Agreement, also known as a Marriage Contract, is a written contract entered into by a married couple while they are committed to one another. Using a Postnuptial Agreement, the spouses are able to outline the financial obligations of both Parties in the marriage and develop a plan of how to divide assets and debt obligations if the marriage ever comes to an end. A Postnuptial Agreement is similar to a Prenuptial Agreement because both documents outline the terms of a potential separation or divorce. However, a Postnuptial Agreement is distinctive because it is created after the couple has already been married. In contrast, a Prenuptial Agreement can only be created before the couple is married. These sorts of contracts are often associated with individuals who have a large amount of assets. However, a Postnuptial Agreement can be used in many different situations, such as the following:

• One or both of the Parties has children from a previous relationship
• One or both of the Parties owns property that they would like to keep separate
• One or both of the Parties has a significant amount of debt
• The Parties would like to outline their financial responsibilities for housing and living expenses prior to moving in together in a shared marital home

Many people worry that creating a Postnuptial Agreement means that their marriage will end, however, this is not the case. Within most marriages, there is always the chance of separation or divorce. Whether or not a couple creates a postnup, they are in control of the future of their relationship. In many cases, a postnup is just a document used to plan ahead and prepare for the worst. Some couples wish to plan ahead to alleviate future conflict. Being realistic and planning ahead does not mean that a relationship is destined to end. However, if a married couple is currently contemplating separation or divorce, they should not use a Postnuptial Agreement. They should instead use a Divorce Agreement. Creating a Postnuptial Agreement in contemplation of separation could have the effect of invalidating the postnup.

If a couple does not have an agreement in place when they divorce, state laws and courts are left to decide how to divide property, dictate custody, and allocate debt. By creating this postnup, the terms the Parties agree to are used instead of the default guidance of state law. A Postnuptial Agreement, like any contract, can be challenged in court, but the Agreement creates the initial presumption that the Parties agreed to its contents and want to follow those guidelines they agreed on. A thorough and successful Postnuptial Agreement can drastically speed up divorce litigation, or even avoid it altogether in the event of a divorce.

How to use this document

In order to complete a Postnuptial Agreement, the Parties should work together to disclose their assets to each other, decide how they would like to outline their financial obligations, and make arrangements should the marriage end. A Postnuptial Agreement covers several major areas as follows:

• Property: The Agreement describes all of the property currently owned by the Parties and allows them to dictate how they would like to divide their shared property if they separate. The Parties can specify what, if anything, will be considered shared property subject to division. For example, couples often decide that the property they acquired separately before the marriage shall remain separate property not subject to division after the marriage. This consideration is especially important if either of the Parties has inherited property or has a great deal of assets.

• Debts: This Agreement allows the Parties to describe any debts that they brought into the marriage. The Parties must decide whether debt acquired before the marriage shall remain separately owed by the Party who originally incurred it or whether it becomes marital debt owed by both of the Parties. This section also gives the Parties the chance to describe how responsibility for shared debt will be divided if the Parties separate.

• Marital Residence: If the Parties already live together or plan to live together at some point, this section of the Agreement allows them to outline matters related to co-habitation, such as alterations of already existing leases or property deeds, payment of expenses related to maintenance of the marital residence, and responsibility for shared living expenses. There are many different ways for a couple to manage their finances together, whether they maintain separate bank accounts and each take on different bills or if they have a joint bank account that they both contribute to. This Agreement includes some of the most common arrangements as options, but also allows the Parties to specify their own unique arrangements.

• Children: If one or both of the Parties has children from a prior relationship, they can specify that in this section. This portion of the agreement allows the Parties to dictate whether they plan to provide a home and reasonable support for each others children from a prior relationship without creating an obligation to continue that support should the marriage end. This section also allows the Parties to list any children they have had together and includes custody arrangements should the Parties separate.

• Spousal Support: This Agreement allows the Parties to outline whether or not one Party will pay spousal support, also known as alimony, to the other Party if they divorce in the future. Spousal support is generally paid to the Party who made less money during the marriage. If the Parties already know that one of them will not be working or will be making significantly less money, spousal support payments can be negotiated and planned for ahead of time using the Postnuptial Agreement. Note that a judge can revoke the spousal support agreed to in a Postnuptial Agreement if they believe it will leave one Party destitute or if it is otherwise considered one-sided or unfair, even if the Parties initially agreed on the terms.

A Postnuptial Agreement can be ruled invalid in the following situations that the Parties should be careful to avoid:

• Failure of either Party to disclose all assets and financial information to the other Party;
• Evidence of fraud;
• Evidence of duress or unfairness; or
• Signed involuntarily.

The Parties should make every effort to both have a reasonable amount of time to review the completed Agreement prior to signing. After completing the Agreement, the Parties may independently consult attorneys. The Parties may agree to each consult with an attorney prior to executing the document due to the nature of the important and personal rights involved. If desired, there is an option to sign the document in front of their attorneys and have their attorneys complete paperwork acknowledging that they've witnessed the signing of the document. The signatures of both Parties should be witnessed by a third party and that third party should complete their own section on the signature page.

The Parties do not need to file their Agreement anywhere once it is completed. However, signed copies of the document should be kept in a safe and secure location such as a safe, bank safety deposit box, or with an attorney.

If circumstances change, such as one of the Parties loses their job and can no longer fulfill the financial obligations as detailed in the Postnuptial Agreement, or the Parties decide they want to make new arrangements, they do not need to write an entirely new document. By using an Amendment to Agreement document, the Parties can easily add, delete, or rewrite portions of the Agreement as desired or necessary.

Applicable law

Postnuptial Agreements are a matter of state law with different states having different requirements dictating the enforceability of a Postnuptial Agreement.

As of 2017, 27 states (Arizona, Arkansas, California, Connecticut, Delaware, District of Columbia, Florida, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Maine, Montana, Nebraska, Nevada, New Mexico, North Carolina, North Dakota, Oregon, Rhode Island, South Dakota, Texas, Utah, Virginia, and Wisconsin) have signed onto the Uniform Premarital Agreement Act which is also applicable to Postnuptial Agreements. This Act addresses the varying standards regarding these agreements that have lead to varying laws and questionable enforceability as couples move from state to state. This Act dictates that if a Postnuptial Agreement is deemed enforceable in one of the states that has signed on, it will be enforceable in all of the other states that have signed on.

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