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What is a Postnuptial Agreement?

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  • Written By: Tricia Ellis-Christensen
  • Edited By: O. Wallace
  • Last Modified Date: 14 November 2016
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The postnuptial agreement is essentially the after marriage version of the prenuptial agreement. Prenuptial agreements are more common and are contracts a couples sign before they marry, specifying what happens with money and assets after a marriage ends in divorce, often superceding regional laws that would automatically determine these things. Prenups may also list other financial arrangements or expectations about spousal behavior on issues like fidelity, frequency of sexual intercourse, or maintenance of appearance. Sometimes couples marry without a prenup and decide later they’d be more comfortable with a legal contract, or they’d like to change a prenup with a postnuptial agreement.

Pre- and postnuptial agreement contracts aren’t particularly romantic, and some people avoid them because they don’t want to think about possibility of divorce. Yet, especially when people have complicated financial issues, or there is huge disparity in financial states of two people who have married, the postnuptial agreement can prove practical. These agreements can be a way of making certain that assets are disposed of in the manner agreed upon by the couple at onset of marriage, or shortly thereafter, and this may reduce tension, allowing a couple to focus on building a happy life together.

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The greater difficulty with a postnuptial agreement is that both members of the couple are not always in complete agreement on how money should be allocated if a divorce occurs. One member of the couple might realize he or she stands to benefit more by not signing a postnup. This is why the prenup is ideal. These issues can be handled prior to the marriage and prior to the couple entering into a marriage contract that creates a certain amount of legal entitlement. Still, when money is not the issue and a postnuptial agreement is fair, many feel they have more to gain by signing it than by refusing to and undergoing a divorce.

From a legal standpoint, people must understand they may waive some rights if they sign a postnuptial agreement. For instance, a postnup that reduces a divorce settlement to less than half of shared assets in a community property state is to the disadvantage of the person who signs it. On the other hand, if assets are generous and the person knows this reduction is to benefit family member of a spouse, it may not make that much difference.

As with a prenup, it’s often advised both members of the couple have separate legal representation so the interests of both parties are fairly represented. Both parties should choose lawyers experienced in crafting the legal postnuptial agreement, so that neither party can successfully overturn it if a marriage ends. With very few prenuptial agreement requests it may be possible to use a single attorney, when the couple is in agreement on what needs to be done. It still makes sense to choose a lawyer that is experienced in this area, and couples might want to take the opportunity to write their wills at the same time.

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