Most people are familiar with prenuptial agreements, especially when it comes to celebrities or millionaires. However, you may not know much about postnuptial agreements, which have recently become more popular throughout the United States. Postnups are created by spouses after entering into marriage and settle the couple’s affairs or assets in the event of a divorce.
Postnups and prenups have plenty in common, but there are a few key differences that are important to keep in mind. Here is everything you should know before signing a postnuptial agreement.
Similar to prenups, postnuptial agreements serve to sort out finances, estate planning, power of attorney, and other critical arrangements in the event of a divorce. The contracts can clarify the terms and rights of the parties before any conflicts arise in the divorce process, which can simplify and shorten divorce proceedings. While these agreements are valuable to all married couples, postnups are particularly beneficial in certain situations:
State laws govern what can or cannot be included in a postnuptial agreement, but there are a few subjects that are normally included in postnups nationwide. Firstly, it is common for couples to draw up postnuptial agreements in order to clearly define what property will be kept separate and what will be considered marital property in the event of divorce or death of one of the spouses. Moreover, spousal support clauses are often included. Properly drafted postnuptial agreements can protect a spouse from paying alimony or specify the conditions under which it must be paid.
What cannot be included?
There are certain provisions that will not be considered valid if they are included in a postnup. Since child support and custody are determined by the court according to the "best interest of the child," these issues cannot be established by a postnuptial agreement. Also, postnuptial agreements cannot be used to regulate routine aspects of a marriage, such as daily chores.
Differences between a postnup and prenup
While both prenuptial agreements and postnuptial agreements typically address essential practical and financial considerations in the event of a divorce, the two agreements have several differences:
Are they enforceable everywhere?
Postnuptial agreements are still a relatively new concept, although they are becoming more common with time. Nevertheless, differing state laws make these contracts more difficult to enforce in some states than in others. The majority of states simply require the contract to be signed without coercion and with full disclosure of finances in order to be valid. Others, however, have additional regulations. For instance, postnuptial agreements in California must demonstrate "the highest good faith and fair dealing [by] each spouse, and neither shall take any unfair advantage of the other.”
If you and your spouse decided that you want a prenup, it’s time to seek the services of an experienced divorce attorney. Prenuptial agreements should always be drafted with the assistance of an attorney, and some states even mandate that both parties have their own legal representation,
You will start off the process by gathering all of your financial information and documents including bank statements, retirement account details and property appraisals. Then, you will work alongside your attorney to draft a personalized agreement that will consider both you and your spouse’s rights and wishes.