A question that I’m sometimes asked is: Can I enter into a prenuptial agreement after I get married? The answer is: yes, you can. These agreements are known as postnuptial agreements or postmarital agreements.
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.
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[...] article Postnuptial Agreements nails the point quite well: ‘The reason for more careful treatment of postnuptial agreements [...]
Nice article – It’s important to keep in mind that when enforcing postmarital contracts a few things are looked at:
* Was there a full disclosure of assets?
* Was the agreement fair, when each spouse’s contribution to the marriage has been considered?
* Was there any coercion during the process of drafting the postnuptial agreement?
I am about to enter a postnuptial agreement after a marriage of 10 months. My wife has much more assets than i. eg She owns 3 properties outright — i rent — admittedly i have an allocated pension fund which i draw out monthly, which does not go too far. We both live in the rental apartment which i pay for as well food, electricity,gas — dinners out, holidays. My wife has provided me with a prenup that had drawn up before from a previous engagement that didn’t eventuate. On it has a paragraph that stipulates that i will pay for all of the above. I would like to delete that as i don’t want to be bound — as she is in a position to contribute, but obviously she chooses not too as she can further enhance her portfolio.
Regards.
Incorrectly states that “Antenuptial Agreement” is another name as Postnuptial Agreement. In fact, “Antenuptial Agreement” is another name for “Prenuptial Agreement”, like antepasto.
Thanks for catching that Les.
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[...] marriage or civil union, in order to protect a person’s assets in the eventuality of a divorce. A postnuptial agreement is a similar written contract, but is entered into after marriage. These agreements typically [...]
Can I get a postnuptial agreement in florida and print form online get it signed by notary? If agreement is broken will it hold up in divorce court? I want to agree that if one party commits adultery they would pay the other spouse a monetary settlement?
in the state of texas you can hand write the postnuptial and as long as it is dated and signed by both parties it is a legal and enforceable document per a Texas Divorce Attorney.
It can mean an agreement between two parties. Look it up.