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A postnuptial agreement is a legally binding contract that dictates how a married couple will divide their assets if they get divorced. Unlike a prenuptial agreement that is executed prior to marriage, a postnuptial agreement is signed after the couple is already married.
How to Review a Postnuptial Agreement
Postnuptial agreement review is an important step in the contract execution process. Reviewing a postnuptial agreement requires careful attention to detail and legal expertise.
Follow these steps when reviewing a postnuptial agreement:
- Read the full contract. Start your review by reading the entire document. Make sure that you understand all terms including the division of assets, financial obligations, and any special conditions or restrictions.
- Consider fairness. A postnuptial agreement may be challenged for unconscionability if the terms are not fair. The contract shouldn’t heavily favor one spouse over the other or create an undue hardship on either spouse.
- Make sure it follows the law. Every state has laws that govern marital agreements. You should become familiar with these statutes and make sure that the contract adheres to all applicable laws.
- Seek legal advice. Before signing a postnuptial agreement, seek the advice and guidance of a family law attorney who specializes in postnuptial agreements.
Reviewing a postnuptial agreement is a complex legal process and this contract can have a significant impact on a married couple’s future. If you are unsure about any of the terms in the contract, always seek legal advice.
Can You Do a Postnuptial Agreement Without a Lawyer?
While it is possible to draft a postnuptial agreement without a lawyer, it is not recommended. A postnuptial agreement is a legal contract that can have serious consequences on a couple’s marriage and financial future, so it needs to be drafted correctly.
A lawyer with family law experience will know what provisions must be included in a marital agreement and what provisions cannot be enforced. The lawyer will have knowledge of local and state laws that govern these types of contracts and can ensure that your contract is legally binding.
If you and your spouse choose to draft your own postnuptial agreement, you should always have it reviewed by a lawyer before signing. A lawyer who reviews a contract will read the agreement to ensure that it is drafted properly and that each spouse has fully disclosed their financial information and understands the terms of the contract. This will avoid any issues of upholding the agreement in court if the couple divorces.
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Is a Postnuptial Agreement a Good Idea?
Yes, a postnuptial agreement is a good idea for all couples regardless of their financial situation. Many people believe that these contracts are only meant for extremely wealthy people, but postnuptial agreements benefit couples at all income levels. Marital agreements are great tools for couples to protect their assets and plan their financial future.
Depending on the property division laws of your state, your marital property will either be subject to equitable distribution laws or community property laws. Either way, without a valid marital agreement or coming to an agreement during the divorce, the court will determine which spouse is entitled to certain marital property.
To avoid being subject to state laws and a mandated court property division, a couple can discuss what type of property distribution plan would be right for them and detail this plan in a legally binding postnuptial agreement.
Postnuptial Agreement vs. Prenuptial Agreement
Postnuptial agreements and prenuptial agreements are both legally binding marital contracts that dictate how a couple’s property is divided in a divorce. The only difference between these two contracts is when they are executed.
A prenuptial agreement is drafted and signed before a couple is married, but it must be made in anticipation of marriage to be valid. A postnuptial agreement on the other hand is created after a couple is already married.
Both contracts are useful financial planning tools that can provide couples with asset protection throughout their marriage and after a divorce.
Disadvantages of a Postnuptial Agreement
Postnuptial agreements provide couples with many benefits, but they do gave some disadvantages. Before signing a postnuptial agreement, consider these drawbacks:
- Some people may view a postnuptial agreement as a sign of lack of trust between partners. It is important to have an open and honest conversation about marital agreements before deciding to be bound by this contract.
- Once a postnuptial agreement is in place, it can be difficult to challenge or revoke. This limited flexibility could create issues if financial circumstances change.
- Negotiating the terms of a postnuptial agreement could cause emotional strain on the couple because it is essentially a plan for divorce or separation. This can be a difficult conversation for couples to have.
- In some cases, even a properly drafted postnuptial agreement may have an adverse impact on the financially weaker partner. Consider whether there is a large disparity in income, earning potential, or assets, when drafting this contract.
Before entering into a marital agreement, it is important to recognize these disadvantages and weigh them against the benefits of a postnuptial agreement. If you have questions or legal concerns, consult an attorney for legal help and guidance.
Do Postnups Hold up in Court?
If a postnuptial agreement is drafted and executed correctly with fair and reasonable terms, it will usually hold up in court.
Most states have laws that regulate marital agreements. These laws may include drafting regulations like the agreement must be in writing and be notarized. Some states require certain time periods for spouses to review a postnuptial before signing. This eliminates the issue of undue pressure and provides the spouse time to seek legal counsel.
State laws will also dictate what issues can be addressed in a postnuptial agreement. While most states do not allow child support or custody to be included in a marital agreement, other states will consider these provisions if they are in the best interest of the child.
Finally, to hold up in court, every state requires postnuptial agreements to be fair, reasonable, and made in good faith. This means that both couple’s must fully disclose their assets and liabilities and enter into the agreement with good intentions.
If a judge determines that the contract meets all state requirements, there is a good chance it will be enforced.
Can a Postnup be Challenged?
Yes. Postnuptial agreements can be challenged in a divorce. The requirements that govern postnups are subjective so and can be argued in court. Issues like fraud, duress, or whether each spouse provided a full disclosure of all property could lead to a postnuptial agreement being overturned.
When a postnuptial agreement is drafted by an experienced attorney, it is much more likely to be “iron clad” and free from loopholes that could lead it being unenforceable. A lawyer will draft provisions that protect both spouses and their property and can help ensure that the postnuptial agreement will survive a challenge in court.
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ContractsCounsel is not a law firm, and this post should not be considered and does not contain legal advice. To ensure the information and advice in this post are correct, sufficient, and appropriate for your situation, please consult a licensed attorney. Also, using or accessing ContractsCounsel's site does not create an attorney-client relationship between you and ContractsCounsel.
