Postnuptial Agreements

Postnuptial Agreements
May 18, 2021

{3 minutes to read} The idea of a prenuptial agreement is familiar to most people — an agreement that a couple can enter into before their marriage that can provide how property and debt will be distributed in the event of death or a divorce. It can also provide for paying or waiving spousal support. But what exactly is a postnuptial agreement, and why would anyone want one?

A postnuptial agreement is an agreement that a married couple can create to do the very things that a prenuptial agreement can do in terms of spousal support and distribution of property and debt. While you can include provisions about child support and custody, those provisions would still be subject to a court’s determination as to the best interests of the children.

Provisions regarding children aside, pre- and post-nuptial agreements will be enforceable if validly executed and the following factors are met: 

  • The agreement provides benefits for both parties. 
  • There is full and complete financial disclosure.
  • Both parties have had the agreement reviewed by an attorney.
  • There is no fraud, duress or undue influence.
  • The agreement is properly executed in the same manner as a separation agreement.

The main reason why a couple would want to execute a postnuptial agreement is that it can be a way for them to continue the marriage. They can be going through a difficult time, and it’s possible that having financial matters settled can help them feel more inclined and comfortable in working with a mental health professional to remain married.

Here are some situations where I have seen postnuptial agreements benefitting a couple:

1. One party accumulated a lot of debt without the other’s knowledge. The other party was upset about it and wanted to be sure that they would not be liable for their spouse’s debt and any additional debt that the other may accumulate.
 
2. The parties agree that their relationship needs some help to repair it, but one or both are afraid of entangling finances any further. They fear sharing future assets and income if they cannot successfully save their marriage.
 
3. The parties agree that one of them should stay home with the children full time, and not work. That person wants some security in terms of support if there is a future separation since they gave up a secure job and career to remain with the children.
 
Entering into a postnuptial agreement doesn’t mean that you are ending the marriage — in fact, it can help you to save your marriage. 
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