POSTNUPTIAL AGREEMENTS GENERALLY
A postnuptial agreement is a contract similar to a prenuptial agreement. The main difference is that a postnuptial agreement is entered into between individuals who are married, hence “post”nuptial as opposed to a prenuptial agreement that is between individuals who are contemplating marriage. The postnuptial agreement focuses primarily on financial issues in the event of divorce or separation, but the agreement can incorporate provisions for child care and custody. A postnuptial agreement may establish how the couple’s assets will be equitably divided, how debts are to be paid, whether a spouse is entitled to alimony and support, and inheritance rights and obligations. Postnuptial agreements are also referred to as a post-marital agreement, marital settlement agreement or marital agreement.
VALIDITY OF A POSTNUPTIAL AGREEMENT
There are basic requirements in order for a postnuptial agreement to be valid and enforceable:
- Written. A postnuptial agreement must be in writing and signed by the spouses. It should also be notarized.
- Voluntary. Each spouse must enter into the agreement voluntarily and intentionally. If one spouse is coerced into signing or if a spouse signed the agreement under threats or duress, the agreement will be invalid.
- Full and Fair Disclosure. The parties to a postnuptial agreement must provide a full and fair disclosure of their respective assets, liabilities and income. If a party misrepresents any financial information or omits any financial information, the agreement may be deemed unenforceable. A spouse, in certain circumstances, can waive their right to a full and fair disclosure of assets.
REASONS FOR A POSTNUPTIAL AGREEMENT
People enter into postnuptial agreements for many reasons. In many instances, the postnuptial agreement is used when spouses want to live separate and apart. The separating couple will use the postnuptial agreement to state their clear intentions and identify their respective responsibilities during the separation. Sometimes, this agreement can serve as a basis for a future agreement when the parties pursue a divorce.
In other instances, the postnuptial agreement is used in tandem with divorce proceedings. Instead of pursuing their financial rights with a court-appointed Master or a Judge, a divorcing couple will agree on a division of assets and debts and arrange for support by way of a negotiated settlement. This settlement is then memorialized by way of a postnuptial agreement. The postnuptial agreement will save the couple a lot of money in attorneys’ fees and costs since it removes the lengthy court mandated process and procedure. The agreement also reduces the stress involved with protracted legal proceedings.
DRAFTING THE POSTNUPTIAL AGREEMENT
It is extremely important for a postnuptial agreement to be drafted correctly. Each spouse should be represented by their own attorney to ensure each spouse’s rights and responsibilities are clearly defined and that the other party provides a full and fair disclosure.
POSTNUPTIAL AGREEMENTS – THE MARTIN LAW FIRM, P.C.
The attorneys at The Martin Law Firm, P.C., are committed to serving your needs in a compassionate and efficient manner. Call us today for a case evaluation to discuss your questions or concerns about a postnuptial agreement. You can contact us at 215-687-4053.