Most people are familiar with prenuptial agreements, but what is a postnuptial agreement? Simply put, it is similar to a prenuptial but is signed after (sometimes many years after) the marriage. A properly drafted and executed postnuptial agreement can provide for a clear plan as to how divorce will be handled in the event the marriage falls apart. Cohen Family Law explains the purposes of these agreements and why having legal counsel is essential to creating them.
What is a postnuptial agreement?
These are legal agreements created by spouses after they have been married, in contrast to a prenuptial which is signed before the marriage. They are used primarily to determine what happens to important assets and property in the event of a divorce. In other words, they can decide in advance how property is to be divided between the spouses if their marriage ends. They can also determine how marital debt will be split if divorce comes later.
Let’s say you came into the marriage with your own business. You may want the assurance of having total ownership of this business if you later divorce, without the fear that your spouse will demand half of it. The postnuptial can stipulate that, if you and your spouse divorce, you will retain ownership of the business.
A postnuptial can also provide that one spouse will support the other financially if the two of them get divorced. In fact, one spouse may agree to a term like this in exchange for acquiring ownership rights over an asset (like the aforementioned business).
What can postnuptial agreements not do?
There are limits to what these agreements can accomplish. For instance, a court will not enforce postnuptial terms related to:
- Child custody
- Child support
- The employment circumstances of a spouse following divorce
The differences between prenuptial and postnuptial agreements
Other than when these two agreements are signed (before versus after the marriage), the only major difference between prenuptial and postnuptial agreements is how willing courts are to enforce them. Since the marriage has not yet happened, a prenuptial may be easier to defend against a court challenge.
With a postnuptial agreement, circumstances may have changed after the marriage such that the terms of the agreement could be unfair to one spouse. This may invite extra court scrutiny and is one reason you need experienced legal counsel to assist you.
How to make a valid and enforceable postnuptial agreement
In general, Arizona family law courts will enforce a postnuptial agreement as long as it is properly executed and considered fair to both parties. That means the agreement should be:
- Voluntarily signed. Spouses must voluntarily agree to sign a postnuptial. If there is evidence of coercion or duress, a court will likely not uphold the agreement.
- Full and fair disclosure of assets. If one spouse is to agree to let the other spouse have a piece of property, then it follows that the spouse should actually know what assets the other spouse has. But if the other spouse lies about their assets or income, tries to hide them, or otherwise does not fairly disclose them, the postnuptial may be set aside.
- In writing, signed, and notarized. The agreement should be written, signed, and notarized. It’s also essential to allow both spouses ample time to review and consider the agreement before executing it.
Legal Counsel for All of Your Family Law Needs
If you are considering a postnuptial agreement, or you have questions about it, you should consult with a knowledgeable family law attorney. A lawyer can guide you as to whether a postnuptial is right for your situation, what the terms should look like, and how to draft and execute the agreement in a way that makes it enforceable. Give Cohen Family Law a call today to learn more.
