Why Do All Married People Need a Postnuptial Agreement?
Marriage is usually talked about in terms of love and relationships – the intensity of the emotions you feel towards each other, as well as the security and confidence that you will find your Identity and know that you will spend the rest of your life with it.
Except, of course, that the time spent in a marriage is usually less than ten years—most marriages in the US end after about seven years . Most marriages end in divorce — about half of all first marriages end in divorce court, and this rate increases sharply with second (67%) and third (73%) marriages.
This is why it is important to remember that marriage is a legally binding contract , as well as a symbolic union of two souls. From this perspective, things like prenuptial agreements don’t seem so cold and cruel; they can be a real godsend if your marriage is one of those that failed. However, if you are already married, it is not too late to approach your partnership rationally and put your understanding in writing. You can always draw up a postnuptial agreement.
Postnuptial agreements
A postnuptial agreement is exactly what it sounds like: a legal agreement between spouses that you create and sign after you’ve already been married. You may enter into one because you did not enter into a prenuptial agreement and want to clear things up, or your financial situation has changed and you now feel the need to formalize some arrangements. The key difference is the focus of the document: a prenuptial agreement is primarily focused on you as an individual, with no implied obligations to your spouse—it protects the assets you already had before marriage. A postnuptial agreement directly addresses your obligations to your spouse .
Postnuptial agreements typically outline several general aspects of your legal and financial responsibilities to each other:
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Inventory and division of property. A postnuptial agreement usually clearly states who owns what and how property will be divided in the event of a divorce. This can range from real estate such as a home to investments and family businesses. For example, if a couple has a joint investment portfolio, but one spouse puts 75% of the money invested in it, a postnuptial agreement could specify that in the event of a divorce the funds will be split 75-25, which could save you a lot of money. from quarrels.
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Distribution of debts and other obligations. Post-marriage can also clearly define who will be responsible for debts currently shared within the marriage. If you, for example, took out a large loan, paid off a car or paid off a mortgage, a postnuptial agreement determines who will bear that debt in the event of a divorce.
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Alimony and support. A postnuptial agreement can also define future financial arrangements, such as spousal support. For example, if one spouse stops working to care for the children and home, the spouse can determine the earnings they sacrificed and require the other spouse to pay alimony. This may help your partner feel more confident about their decision to give up their career.
A postnuptial agreement may also contain provisions for future property and financial contingencies. For example, he may specify that any property acquired by either partner after the marriage agreement is signed will be considered their individual assets rather than a community asset. You can also determine how inheritances will be handled or how large gifts will be handled. For example, if one spouse’s parents gave the couple a large cash gift to purchase a home, a postnuptial agreement may determine whether the other spouse should return their share of that gift or whether it should be forgiven and rendered moot.
The only thing you can’t include in a postnuptial agreement is custody terms . Even if both partners agree on plans for children in the event of a divorce, actual decisions regarding custody and support are almost always left to the discretion of the court based on the best interests of the child. Even if you try to secure custody and support in your marriage, it will not be legally binding unless the court agrees with you on every point.
How to draw up a postnuptial agreement
Postnuptial agreements can be a murky area of the law, depending on where you live. Some states have clear legal guidelines for them; there is very little precedent in other states. It is always best to use the services of an experienced family law attorney when drafting it to ensure it will be valid in your state.
In general, however, as long as the agreement satisfies some basic principles, you should be fine. The agreement must be:
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On the letter. The agreement must be in writing – an “understanding” or oral contract, even if confirmed by both parties, is usually no substitute. And both parties must sign the agreement in a legally acceptable manner.
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Voluntary and fair. Neither partner should be pressured or forced to sign a postnuptial agreement. For example, if one partner threatens to leave the other penniless unless he signs an agreement that benefits him, the agreement will likely be unenforceable.
Likewise, the terms of the agreement must also usually be reasonable and fair. Even if both parties agree, if the courts find any provisions to be unconscionable or unfair, the agreement may be rejected.
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Comprehensive. Postnuptial agreements must fully disclose all relevant information. Withholding assets or other information may render the entire agreement unenforceable.
Like prenuptial agreements, postnuptial agreements aren’t just about troubled marriages. These agreements can create a sense of security for both partners by providing clear instructions, an inventory of assets, and other ground rules for the marriage. Additionally, since these agreements remove much of the financial uncertainty associated with divorce, they can also help couples focus more on the emotional ties between them and the relationship because they don’t have to worry about financial maneuvers to protect themselves.