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Postnuptial Agreements

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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