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.
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.
Thanks for catching that Les.
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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.
I am currently involved in a divorce that involves a post-nup that was drafted while we were seperated, and only my attorney was used. I live in Michigan. Will this agreement be valid? I keep reading that if it is crafted with divorce in mind it is void. Also have read you need to each have an attorney. I am not contributing anything in the settlement, it is all in favor of me so I am worried it will be throw out of court
Oh honey you are a woman, please, you have nothing to worry about.
Linda above nailed it! You are a woman. So you have nothing to worry about. The worse you can do, is come out fair. Odds of that are pretty slim.
I live in Florida. My dad died last month. He had a post nuptial agreement before he died. It was made in 2011. It is signed by both parties and is notorized. I was reading the Florida statute 732.702 and it says something about having 2 witnesses. I can’t find out what the law was in 2011. I wondering if it is valid or does that make it void?
If it was notarized I would think it would be valid. I mean it’s a NOTARY for goodness sake.
My husband and I made a Premarital Agreement in 2004 now we need to update it, how do we call it if we are already married 11 years?
Can a post nuptial agreement be enforced a by a 93 year old spouse of a 3rd wife. in the case of desertion of, by that wife, when the spouse has grown old, weak and sick? The husband has provided the wife with a house, pays all of the bills, given her every luxury he can provide. The house was purchased inn cash by the husband, who has living grown children ,and grandchildren. The wife contributed nothing to the household financially, and continues not to do so, even though she receives a monthly social security check also.. She only contributed a few pieces of furniture at beginning of the marriage 11 years ago.
I am considering a post nuptial agreement, been married for 29 years, separated witv pending divorce. My spouse wants to try and,salvage our marriage, but I have trust issues with him , so i want a post nuotial . In this agreement im asking for money and other things.
Should I do this?
I have same deal – trust issues. My wife asked for divorce, cheated on me and the boyfriend dumped her. Now she wants back together. I deserve better. Besides, my friends and family would kill me if I didn’t get this divorce after learning the details about how much pain she’s cause me. I think we both need to move on – get the divorce and start next chapter of life. It is painful and may end up being financially difficult too but the thought of growing old together with someone not fully loyal is unsettling, particularly when you think about retirement.
My mother was married for about 20 years with my stepdad. My stepdad doesn’t have any work.
My Mother is the one who pays all the bills including the mortgage.
Now, the house that they are living will is on the market and my stepdad asks her to sign the nuptial agreement that she will not be getting any cents when they sold the house.
Is this legal? does she need to sign the agreement? after all the expenses and efforts to maintain
I need help with this matter.