In a previous article, we discussed what a prenuptial agreement is. As a refresher, a prenuptial agreement is a contract entered into before marriage. It often is put in place to decide how the couple will divide property, debt, and other financial assets that may come into questions upon a divorce.
A postnuptial agreement is similar in that it is a legally binding agreement between a couple. It can address how alimony will be awarded and the amount, how property, debt, and other assets will be divided, and even what conduct will be acceptable during the marriage. However, the main difference is that a postnuptial agreement is entered into after the marriage has already begun.
Why would someone wait until after the marriage to get a postnuptial agreement instead of getting a prenuptial agreement before the marriage? It could be the case that before the marriage the parties did not think that they needed an agreement and later reconsider this decision. Or perhaps a couple’s situation has changed and now they feel the need to get a postnuptial agreement. For instance, imagine that one party decides he or she wants to start a business. This party may want to ensure that this business and his or her interest in the business is protected should a divorce occur. Or, imagine that one party decides to quit his or her job in order to take care of the family. This party may want to ensure that they are financially taken care of should a divorce occur since they will have been out of the workforce for quite some time. In both of these situations, and many others, a postnuptial agreement would help to alleviate some concerns.
The same rules of validity apply to a postnuptial agreement as they do to a prenuptial agreement. Therefore, in order for a postnuptial agreement to be valid:
- A spouse must not have obtained the postnuptial agreement through fraud, duress, or mistake;
- The couple is mentally competent;
- All material facts were disclosed to each spouse;
- The agreement is fair; and
- The couple’s circumstances have not changed so much so since the agreement that it is no longer fair.
