Creating a Postnuptial Agreement
Marriage is an emotional and legal union. If you walked down the aisle without a prenuptial agreement, your partnership became susceptible to your state’s marriage laws in the case of death or divorce. Unfortunately, these laws are vague and, in most states, a judge makes decisions about property distribution should your marriage end. It’s never too late to define and protect your own partnership. The process of creating a postnuptial agreement, a marriage contract created anytime after the wedding, can be a positive influence on both the emotional and legal dynamics of your relationship.
We certainly recommend discussing a postnuptial agreement if the financial status of your partnership changes through an inheritance, career change, etc. We also advise all constituents, regardless of the current financial status of the partnership, to consider taking the time to discuss their partnership and create a postnuptial agreement (also referred to as post marriage agreements or simply marriage agreements). It is never easy to discuss topics like money and divorce, but our experience has shown that these conversations can actually strengthen your relationship. Breaking communication barriers about sensitive issues can help make your marriage even stronger and more balanced.
We’ve compiled the “nut and bolts” of a postnuptial agreement to help you and your spouse become more familiar with what a postnuptial agreement is, what states they are valid in, and what to include in one.
The Commitment Conversation
Before we continue to outline these legal agreements, let’s take a step backwards and acknowledge that postnups are simply the joint expression of a couples’ wishes. In an effort to help individuals and couples feel more comfortable in discussing these issues, we’ve created a guidebook to help you and your partner navigate the most important conversation of your future together. Click here to learn more.
What is a postnuptial agreement?
A postnuptial agreement is a contract between spouses. It is similar to a prenuptial agreement except it is signed during marriage. A postnup is entered into in contemplation of an ongoing, viable marriage.
There are two basic rules that should be followed to safeguard your agreement: full and fair disclosure and separate and independent counsel.
What states are they valid in?
Most states recognize postnups either explicitly by statutes allowing married persons to contract with each other, implicitly through statutes regulating certain terms or requiring of such agreements, or as a matter of “case” or “common” law.
Unlike prenups, there is no “act” that applies to postnups. Therefore, if a postnup is challenged in court, the court may scrutinize them more carefully than prenups. Postnups may also be held to a higher standard of fairness than prenups on the theory that individuals have lesser bargaining power once married.
What you need to consider:
In general, you will want to consider and discuss the following with your spouse:
- Discuss all the assets and debts of your relationship as well as future income opportunities.
- Discuss the current financial status of your relationship including spending habits, roles and responsibilities and any concerns you have over money matters.
- Be open and honest about your assumptions and expectations of how property would be handled in the case of death or divorce. Draw up and sign the agreement with the help of two lawyers. It is critical that you are each represented independently to maintain the contracts legal validity.
- Revisit the contract periodically, especially if your lifestyle or financial status changes drastically. If you move to a different state, check to make sure the laws or legal precedents don’t affect the status of your contract.
What should be included in a postnup?
- List all assets, liabilities, income, and expectations of gifts and inheritances.
- Describe how post-marital debts will be paid.
- Resolve what happens to your post-marital property in reference to appreciation, gains, income, rentals, dividends and proceeds of such property- in the event of death or divorce.
- Resolve what happens to your post-marital property in the event of death or divorce.
- Decide who, or if both of you, will own the marital residence and secondary homes in the event of death or divorce.
- Specify the status of gifts, inheritances, and trusts either spouse receives or benefits from, whether before or after marriage.
- Clarify what will happen to each type of property, whether jointly or individually owned, such as real estate, artwork and jewelry.
- Figure out alimony, maintenance, or spousal support, or provide for a waiver or property settlement instead of support (to the extent allowable by law).
- Detail death benefits, stating what you will provide for in your will.
- Decide on medical, disability, life or long-term-care insurance coverage.
For help in broaching the topic read How (and Why) to Bring Up a Postnup