Common Uses of Postnuptial Agreements

People enter into postnuptial agreements more often than you might think. For instance, if one spouse is about to enter a business, their partners may require them to sign a postnuptial agreement. As a precondition to entering the partnership, a person may be required to enter into a postnuptial agreement stating that if they separate or pass away, their spouse will not make a claim on the business. This will allow the partners to be assured that a separation or death does not interfere with the running of their business. This requirement is particularly common in family businesses and in the financial community.

Another situation where postnuptial agreements are used is where separate property is used to purchase community property. A common example of this is when a couple agrees to use separate property to buy a marital residence. A postnuptial agreement may be negotiated so that the spouse who uses their separate property still gets the same benefits as if it had been kept separate.

Sam Hasler discusses some other good reasons why a couple should have a post-nuptial agreement. These include: second marriages with assets and no prenuptial agreement and also for estate planning purposes.

A postnuptial agreement is also generally useful in many of the cases where a prenuptial agreement is useful, but you don’t have one.

Cautions About Postnuptial Agreements

Courts look with great scrutiny upon postnuptial agreements. Historically, postnuptial agreements have not been permitted. Originally, this was because a married couple was considered just one person and so could not contract with itself. More recently, this was because a postnuptial agreement was thought to encourage divorce. Nowadays, most states probably do enforce postnuptial agreements, but great care must be taken to negotiate them in good faith.

The reason for more careful treatment of postnuptial agreements over prenuptial agreements is the legal rights of the people involved. Prior to marriage, neither person has any legal family law rights on the other. So, a person is not giving up any rights when they enter into a prenuptial agreement. However, the situation between a married couple is very different – both parties have very well defined legal rights regarding support and property division. So, when they negotiate a postnuptial agreement, they will be giving up some of these rights. Because of this, it is very important for both parties to each have an attorney and to really bend over backwards to be fair in the postnuptial agreement.

Another reason that courts really scrutinize postnuptial agreements carefully is that they are often used maliciously as “divorce planning” tools. If someone believes that their marriage is ending, they may pressure their spouse to enter into a postnuptial agreement. For instance, in one case, the wife threatened to deny the husband access to the children if he did not sign the postnuptial agreement. The court invalidated the agreement because of this.

Also, in some states, a postnuptial agreement cannot include a release from the alimony obligation. As well, the same sort of terms that can’t be included in a prenup also can’t be included in a postnuptial agreement.

Divorce can be a really ugly event. Unfortunately, this sort of thing does happen during a bitter divorce. However, I have never heard of such a case involving a prenup before. I can’t even begin to imagine what must have gone through Jackson’s mind.

Negotiating a prenuptial agreement, while serious business, should not be viewed as a negative event. It involves a couple discussing what expectations they have of each other, especially regarding financial matters. Dealing with money is an important part of a relationship, and one that is going to need to be dealt with sooner or later, and preferably sooner.

My condolences to Marita Brown and her family and friends.

It was only in the 16th century that European countries started regulating marriage, and this was primarily because parents were upset about who their children were marrying and wanted more control of the process.

In the US, until the mid-19th century, although marriages were required to be registered, common law marriages were normally recognized. It was only after this that governmental intrustion into marriage increased dramatically, for instance, by the passing of laws forbidding whites to marry non-whites.

More and more people today are choosing not to get married, in part because of the onerous legal obligations that marriage entails (which can be changed somewhat with a prenuptial agreement).

I agree completely with the op-ed piece that marriage should be privatized. In my opinion this would have a number of advantages, some of which are listed in the artice:

1. It would stop the government from passing crazy marriage laws (e.g. whites can’t marry non-whites).

2. It would end the divisive and pointless debate about gay marriage. If two gay people want to live together in a committed relationship, they are free to do so and to negotiate whatever rights they want between them. There would be no need for an official government sanction of the relationship.

3. As the article points out, there are substantive unfairnesses in the way the government treats non-married couples vis-a-vis married couples. Getting the government out of marriage would end this.

4. Couples would have the freedom to enter into prenuptial agreements that did not face some of the current limitations on prenups.

5. It prevents the government from changing the marriage contract after a couple is married. Over the last 35 years, divorce law has seen dramatic changes. Unlike most changes in law, these changes apply retroactively. So marriages are governed by laws that didn’t exist at the time of the marriage.

Let’s face it. What’s important about a marriage is the relationship between the couple. There is no need for a government sanction of the relationship, nor does a government sanction improve the relationship in any way.

The answer is both yes and no. There is not much judicial authority on this issue. A recent Ohio case found that payment of Maher should not be upheld in part because the payment was a religious act. On the other hand, there has been a New Jersey case that upheld payment of Maher as constituting part of a valid contract, rather than a prenuptial agreement.

The answer to the question is likely going to depend on the precise wording of the Maher in the marriage contract, the circumstances of its execution (e.g. was it executed minutes before the actual wedding ceremony), and the precise law regarding prenuptial agreements in the state in which the couple lives (each state’s laws are different).

In the recent Ohio decision the Maher was held to be unenforceable:

Ruling against a Muslim woman, the judge said: “the obligation to pay $25,000 is rooted in a religious practice, the dowry is considered a religious act, not a legal contract.” Now-divorced Raghad Alwattar argued that the dowry was part of an enforceable pre-nuptial agreement. The judge ruled, however, that a prenuptial agreement must be entered into without duress. Here husband Mohammed Zawahiri was hurried into making the agreement only a few minutes before the wedding

This case is on appeal.

In the New Jersey case, the Mahr was upheld. The judge said:

Why should a contract for the promise to pay money be less of a contract just because it was entered into at the time of an Islamic marriage settlement?” The court found that under the doctrine of “neutral principles of law,” it could enforce the agreement’s secular components – specifically a promise to pay $10,000. The wife presented the parties’ wedding video showing two families negotiating the terms as an imam prepared the document, which everyone read before signing. The judge concluded that it was “nothing more and nothing less that a simple contract between two consenting adults. It does not contravene any statute or interests of society.”

The above cases show some of the ways that a Maher can be attacked in court. There are many other ways of attacking a Maher including failure to raise it as an affirmative defense, unconscionability, failure to disclose assets, and duress.

Another consideration is legal fees. In these cases, the amounts at issue were in the $10,000 to $25,000 dollar range. I’m sure that both parties combined spent amounts in this range on attorneys.

Personally, I believe that Maher should not be enforceable in court. Because Maher is a religious matter, the resolution of any disputes relating to it is necessarily religious in nature. There should be a separation of church and state. The secular courts should not be put in the position of being arbiters of religious documents. Involving the judiciary in contentious matters of religious doctrine is an inappropriate intrustion of the judiciary into the realm of religion.

1. I Will Only Marry You If We Get a Prenup – Wise is the person who says this. This article emphasizes the importance of getting a prenup.

2. Basics of Prenuptial Agreements. This article is written on a blog about financial prosperity by someone who is about to get married.

3. Debate on Whether Prenuptial Agreement Should be Compulsory. At this time, the site contains about 78 articles with various people debating the pros and cons of making it mandatory for all couples about to get married to have prenups.

4. Donald Trump Loves Prenuptial Agreements. He’s out promoting his latest book and one of the things he emphasizes is the importance of a prenup in a person’s financial success.

5. More Reasons for Prenuptial Agreement Mediation. Mediator and Attorney Paula Lawhon discusses some of the benefits of using a mediator in preparing a prenup. I’d certainly agree with that – the particular skill that a mediator has is helping people come to an agreement.

6. The Economics of Prenuptial Agreements – A humorous look at how a prenup deals with the economics of a gold digger and a sugar daddy marrying.