What are post-nuptial agreements?

Post-marital agreements are drafted after the marriage has taken place, but before either party separates, divorces, leaves, or dies. These post-nuptial contracts contain provisions similar to those commonly found in premarital contracts. The methods for protecting assets and income and divvying them up in the event of divorce or death are different in each post-marital agreement, and the rules regarding the validity and enforceability of post-marital agreements vary from state to state. Before negotiating or signing a post-marital agreement, each spouse should seek the advice of a separate attorney.

Creating a Post-Nuptial Agreement

When creating a post-marital agreement, two rules must be followed to avoid the agreement being nullified by the court. The first rule is known as full and fair disclosure. This means that everything regarding finances and any other area covered in the post-nuptial contract must be brought into the open. The second rule of post-nuptial agreements is that both parties have independent legal council. This means that you both must hire separate attorneys, ideally from a separate office, and that each lawyer should sign a certificate of independent legal council to keep attached to the post-marital agreement. The reason for this is simple, courts give more scrutiny to post-marital agreements because it is established that married couples have lesser bargaining power once they are married than when they were engaged.

What Goes in a Post-Nuptial Agreement

In general, a post-maritial agreement should discuss:
  • All assets and debts of your relationship as well as any anticipated or past debts that could potentially affect you both in marriage.
  • The current spending habits of your family. Often after being married for a number of years and having children, one spouse may become the sole source of income leaving the other feeling potentially vulnerable.
  • Your expectations of property division should a divorce happen. Remember that the purpose of a post-marital agreement is to take control of the property division in the event of a divorce instead of leaving it to your particular state’s divorce laws.
  • Your expectations for the division of property in case one of you dies. This is especially important if this is your second or third marriage or where there is a mixed family with children from different spouses. If you already have a will in place, there is no reason that the post-marital agreement should not simply reiterate the will.

In order to ensure a post-marital agreement is propertly created and adequate, each party needs to consult a different attorney prior to negotiating and signing any post-nuptial contract.