Entering into marriage is the ultimate way to show not only your spouse-to-be that you love them and want to share the rest of your life with them, but your family, friends, and community, too.
While this might be one of the joyous days of your life, it comes with a few strings, namely that, unless you’ve opted for a prenuptial agreement, your assets are tied to your spouse from the moment you sign your marriage certificate. In theory, for many couples, this may not pose a problem, but as people are constantly changing and growing, and coming into unexpected money or property (that summer house on South Beach perhaps?) might leave you wondering about whether or not a postnuptial agreement is right for you.
First, What Is A Postnuptial Agreement?
Simply put, a postnuptial agreement is a contract that is entered to after the big ceremony between two spouses. They are very similar to prenups in that they often contain the legal provisions regarding how to divide assets like property or income between both parties in the event that the marriage fails or an unexpected death occurs.
What Are The Legal Considerations Of A Postnuptial Agreement?
Determining the validity of a postnuptial agreement is something the eyes of the law and courts take special consideration for, so entering into one should not be done lightly. The reason for this is that, when you enter into a postnup, legally you are giving up your legal rights to your spouse. This differs from a prenup in that, in the eyes of the law, prior to marriage you have no obligations or special right to the person you are planning to marry.
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What Are The Requirements To A Postnuptial Agreement?
In order for a postnuptial agreement to be enforceable, it must meet certain requirements, such as:
It must be in writing
It must disclose both assets and debts of each spouse
It must be considered fair when opted into
It must have notarized signatures
It must not be against standard public policy
When Might You Want To Consider A Postnup?
Even those with the utmost faith in their marriage lasting should understand the reasons behind obtaining a postnuptial agreement.
One of the more common reasons that this might be considered is if your spouse’s family gifts you property as a wedding gift, like perhaps a starter home for your budding family. Another common reason is if one of the spouses commits infidelity and is caught cheating on their spouse; the wronged spouse might decide that they’re willing to work on the marriage, but it’ll come at a price in the form of a postnuptial agreement. You may even consider a postnuptial agreement if you and your spouse decide to enter into business together, particularly if one is contributing more to the start-up costs than the other.
It is reasons like these that postnuptial agreements are seeing an increase in popularity among newlyweds. In fact, in a survey issues to the members of the American Academy of Matrimonial Lawyers, half of the return responses indicated that they’ve seen an upswing in requests for postnuptial agreements, while contrarily, only two percent indicated that they were seeing fewer requests.
Should You Get An Attorney?
With that all being said, while every state recognizes postnuptial agreements, the rules vary and can be unclear in many instances given how new this practice is in the grand scheme of things. For this reason, it’s important to do your due diligence and consider hiring an attorney to walk you through all the bells and whistles of the contract so that you’re not caught off guard by the courts should you ever have to enforce the agreement.
While your law-school buddy might think that they can draft your agreement for you, an attorney is not personally invested in either yours or your spouse's life and their only concern is that both parties are protected fully and appropriately. They’ll also be aware of the necessary language required for an accurate, well-written agreement, so it’ll save you time and hassle to get an experienced attorney on board. Hopefully, you won’t need to use it, but if you do, having your contract drafted by a professional will ensure you’re well protected if you do.