What to Consider with a Prenuptial Agreement?

Answer 1

Most people enter into marriage believing that they will be together forever. They have hope for the future imagining their life filled with happiness, children and much more. Couples spend weeks and months planning their wedding, but they never actually plan for divorce. Nobody expects their marriage to break down, but unfortunately the statistics prove that nearly half of all marriages in the nation end in divorce. While many couples enter into a prenuptial agreement before marriage, some are choosing to draft a postnuptial agreement. This type of contract is signed during the couple's marriage. These are becoming more common when one spouse enters into a business. The partners may require them to draft a postnuptial agreement stating that if the couple divorces, the other spouse will not make a claim against the business.

Items to Consider

Before entering into a postnuptial agreement, you should consider some of the following questions:

• What are the assets and debts the couple currently has?
• What are the future income opportunities for each spouse?
• Is either party expecting a large inheritance in the near future?
• Does either spouse have children from a prior relationship that need to be provided for?
• Is separate property being used to purchase the marital residence?

When a couple goes through a divorce, they are allowed to retain any property they owned separately before the marriage. A postnuptial agreement can ensure that they retain the value of the separate property even after divorce.

What to Include in a Postnuptial

Family court judges tend to scrutinize postnuptial agreements much more than prenuptial agreements. Once spouse may use it as a divorce planning tool if they are planning to bail out of the marriage. The main criteria that a judge will use to determine the validity of the agreement include the following:

• Has there been full disclosure by both parties regarding their assets?
• Did either spouse sign the agreement under coercion or duress?
• Are the terms of the agreement fair and reasonable to both parties?
• Was each party represented by their own legal counsel?

Here are some items to consider including in the agreement:

• Individuals that have children from another marriage and have remarried need to ensure that their kids will still get an inheritance, no matter how big or small it may be.
• When one party has substantially more wealth than their partner, they should consider setting certain assets aside as untouchable. There might be special family heirlooms that they want to ensure will be handed down to their children in the future.
• People that have a business may want to protect the company's assets from a divorcing spouse who may be eager to go after it and end up owning a controlling share.

While it may be difficult to broach the subject of a postnuptial agreement, it can resolve underlying financial issues that might be causing undue stress in the marriage.

Seek Advice From a Family Law Attorney

The laws regarding the validity of postnuptial agreements may differ in each state. Therefore, it is recommended that you consult with an experienced attorney who specializes in family law. Having a postnuptial agreement can help avoid a lengthy and costly divorce, so it may be something to consider doing.