Today, every US citizen knows about the realities of marriage and divorce. There are various ways of planning for the worst-case scenario, and the most popular one is through the signing of a prenuptial agreement. However, some couples choose to pursue a different route and sign a postnuptial agreement. Both the prenuptial and a postnuptial agreement serve the same purpose; the only difference is postnuptial agreement is signed after the wedding.
Issues Addressed in a Postnuptial Agreement
In a postnuptial agreement, both spouses disclose all the money and property they currently own, that includes marital property and separate property. After all the property has been disclosed, the couple will then set forth the rights and responsibility each will have during the marriage, which includes how the property will be divided in the case of divorce or death of one or both spouses. Some of the issues that can be addressed by a postnuptial agreement include:
- Define separate property. The assets and property you bring to the union are known as separate property. If each one of you has brought any separate property into the marriage, a postnuptial agreement should specifically identify these assets.
- Define marital property. The same way you can use the postnuptial agreement to define separate property, you can use it to identify marital property too. Even if you brought the asset or property into the marriage, you could place it under marital property if you wish to.
- Establish pre-marriage debt. If either of the spouses brought a considerable debt to the marriage, the postnuptial agreement could state that the debt stays with the person who brought it.
- Establish the support of children from another marriage. If one of the spouses brings minor children from a prior marriage into the union and the other spouse doesn't adopt them, a prenuptial agreement can ensure that the children are cared for in the event of divorce.
Postnuptial agreements are becoming commonplace in the United States. However, despite their popularity, there are issues postnuptial agreements can't address. For instance, issues relating to child custody and child support cannot be definitively addressed via a postnuptial agreement. Such problems should be resolved based on circumstances at the time of separation or divorce.
Legal Implications of a Postnuptial Agreement
Postnuptial agreements are still a new development in the United States law. Before the 1970s, postnuptial agreements were not even legally enforceable. In the state of New York, the laws determine how property should be divided in the event of death or divorce. However, the courts will recognize a validly written postnuptial agreement that seeks to divide property even if it's different from the New York Law.
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A postnuptial agreement is a private contract outlining the expectations as well as the responsibilities of each spouse in the event of a divorce. A prenuptial agreement has to be validated by a court for it to be binding. The courts will be looking for full disclosure, fairness, the participation of both spouses and whether the agreement was voluntary.
Why You Need a Prenuptial Lawyer
One of the requirements of a postnuptial agreement is fairness, failure to which the courts will not validate it. The only way to ensure that agreement is fair is by hiring a lawyer for each spouse. Having a lawyer draft the agreement and getting independent counsel for each spouse to review the agreement is an important part of the process.