Pros and Cons of a Postnuptial Agreement

Every state will allow you to get a prenup after marriage, but it’s not technically called a “prenup” (prenuptial agreement) if it’s after the marriage. The correct term is a “postnuptial agreement” or “postmarital agreement.”

These agreements are similar to prenuptial agreements, but they’re entered into after a couple is already married. They can address many of the same issues as prenuptial agreements, such as the division of property and spousal support in the event of divorce.

This article will discuss the pros and cons of getting a postnuptial agreement.

The Pros of a Postnuptial Agreement

Frequently, after being married without a prenuptial agreement, a couple decides that a postnuptial agreement would be beneficial for them. These legal agreements have the power to take precedence over state law, which would typically specify how property and assets would be divided in the event of a divorce. Of course, a prenup is always better than a postnup because prenups are easier for courts to enforce.

1. A Postnup Can Safeguard Your Financial Situation.

Without a postnuptial agreement, you and your spouse may be required by law to divide your assets, properties, and debts in a way that doesn’t feel equitable to you. No matter who is listed as the owner on titles, deeds, or registration documents, a court may enforce these state statutes. If you have contributed more to a marriage than your partner has, this could leave you with a sizable financial gap if you later divorce or split.

2. A Postnup Can Protect the Rights of Your Children.

A postnuptial agreement might aid in safeguarding your children’s financial rights. Your spouse may get the portion of your inheritance meant for your children in place of a postnuptial agreement.

3. A Postnup Can Provide for Alimony.

According to the Uniform Premarital Agreement Act of 1983, spousal support can be decided based on a prenuptial agreement. The same is true for a postnuptial contract. If there is a divorce, the judge will still have to approve this.

4. A Postnup can Lessen Tension and Increase Marital Confidence.

Because they don’t want to discuss divorce or damper the romance of marriage, couples may be reluctant to discuss the possibility of a prenuptial or postnuptial agreement. However, these contracts are beneficial and can assist lower stress levels and increasing confidence in your marriage’s long-term stability.

5. A Postnup Can Simplify a Potential Separation.

A postnuptial agreement will still smooth the divorce process through prearranged conversations, lower potential costs, and avoid protracted litigation compared to having no agreement at all, even though we will always advise a prenuptial agreement for the simplicity of enforcement.

The Cons of a Postnuptial Agreement

1. A Postnup may Sow Seeds of Uncertainty.

Deciding to enter a postnuptial agreement can give your marriage a feeling of doubt and uncertainty, suggesting that you don’t genuinely think your marriage will survive forever. Making one after getting married, particularly in the face of infidelity, can convey the idea that you don’t think your marriage will stand the test of time.

2. A Postnup may Force a Shift in Lifestyle Choices.

Even while a postnuptial agreement cannot specify spousal or child support, it can affect how assets are divided, so signing one now may result in a change in lifestyle down the road.

3. A Postnup May be Declared Void By a Court.

Even if your postnup looks impenetrable, the judge will scrutinize the agreement if you contest the enforceability of the agreement in court. The judge will assess the document’s validity, fairness, and enforceability. This may rely on state legislation and the authority responsible for enforcing agreements of this nature.

4. A Postnup May Turn Out to be an Unfair Agreement Years Later.

It’s crucial to realize that signing a postnup will result in you giving up some of your rights. For instance, if you live in a state where community property laws apply, and assets are often divided equally, signing a postnuptial agreement could result in a lower divorce settlement.

There are many factors to take into account and make decisions about before any pair decides to get married for life. Both prenuptial and postnuptial agreements are excellent tools for resolving future marital conflicts and preventing future troubles.

If you are considering signing a postnuptial agreement, you should seek the advice of an experienced family law attorney in your jurisdiction.

Do You Need a Postnuptial Agreement?

Many couples may decide at some time in their marriage that they should have a postnup prepared. It’s a valuable legal document to have if there are any doubts or misunderstandings regarding marital finances.

Postnuptial agreements can be helpful if you have kids from a previous relationship and are in your second or third marriage. If you divorce or pass away before your spouse, you can safeguard some of the assets and property you want to leave to those kids. They may also assist you in keeping possession of an inheritance left explicitly to you.

For many married couples, a postnuptial agreement is a smart idea. It might work for you if you didn’t get a prenuptial agreement.

When is the Right Time to Draft a Postnuptial Agreement?

A postnuptial agreement can be made at any time during a marriage and is suitable for both new couples and those who have been together for a long time. A postnup can help spouses resolve any money disputes they may be experiencing.

When You Should Get a Postnuptial Agreement?

It is crucial to make clear that having a postnuptial agreement or even considering one does not indicate that a marriage is doomed. Seeking a postnup, similar to a prenup, does not mean you are considering getting a divorce. It is merely a method of setting up your assets and protecting your rights if the unexpected occurs. If a postnuptial contract were drafted with the intention of getting divorced, several states wouldn’t enforce it.

Following are some of the main factors that influence couples’ decisions to sign a postnuptial agreement:

  • Keep your marriage together: A postnuptial agreement is typically created as a preventative measure against divorce to save a marriage in trouble because of money issues or poor choices by one or both spouses. As part of a strategy to stay married and improve your relationship, you and your spouse may decide to establish a postnuptial agreement as a lifeline.
  • The second or third marriage you’ve had: If this is your second or third marriage and you have kids from a previous marriage or relationship, getting a postnuptial agreement may be necessary. In the event of a divorce or separation, a postnuptial agreement can protect your assets and guarantee that your property is distributed fairly to your children.
  • To protect sentimentally important or emotionally valuable items: A postnuptial contract can also safeguard priceless, sentimental, and significant heirlooms. A postnuptial agreement could guarantee that the item(s) are kept by you in the case of a divorce or are given to your children or other direct descendants in the event of your passing.
  • A change in conditions or income A change in the family’s make-up or income is another crucial factor for a postnup. For instance, if one spouse decides to leave their job and stay home to raise their children, this will unavoidably affect the family’s financial situation. Couples with significantly changing financial conditions may use a postnuptial agreement to reach a fair settlement for their family.
  • Enterprises or joint ventures: A postnuptial agreement can be helpful if a couple launches a joint business venture or endeavor after marriage. In a divorce, the contract may help clarify their respective roles.
  • Relationships and business: A postnuptial contract can also assist couples who own a business to ensure that their personal lives don’t interfere with their professional lives and vice versa.

Tax preparation, moving, wealth planning, and terminal illness are other justifications for obtaining a postnuptial agreement.

What Clauses Can Be Included in a Postnuptial Contract?

Typically, postnuptial agreements contain the following clauses:

  • A clause describing the division of marital assets following a spouse’s passing. These agreements may include waiving the surviving party’s statutory inheritance rights.

  • A Clause discussing plans for dividing the assets accumulated throughout the marriage. This covers any real estate or other possessions acquired during the marriage.

  • A clause concerning a spouse’s rights to assets and property acquired before marriage.

  • A clause relating to spousal maintenance and alimony.

  • A clause stating that in the event of a divorce, the partition of any marital property and debts.

Although it is not required in all places, both spouses should have independent legal counsel, and a notary public should attest to the signatures.

What Clauses Cannot be Made in a Postnuptial Contract?

Like a prenuptial agreement, clauses about child custody, child support, or demands restricting a spouse’s behavior or relationship are not enforceable and may be void.

What are the Postnuptial Agreement’s Legal Requirements?

Postnuptial agreements are governed by state law. To be enforceable, a contract must satisfy five essential criteria.

  • A written postnuptial agreement is required. In this situation, oral agreements are not enforceable.

  • The agreement must be freely given and cannot be forced or coerced.

  • At the moment of execution, all assets must be disclosed in full.

  • The contract must be reasonable and free of unreasonable or unfair clauses.

  • Both parties must sign the agreement and have it notarized.

Attorneys should be used to represent both parties. Since postnuptial agreements are still in their infancy, having an attorney for each side significantly increases the likelihood that the contract will be upheld if the need arises.

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Tim McDuffey is a practicing attorney in the State of Missouri. Tim is a licensed member of the Missouri Bar and Missouri Bar Association.

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