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If you didn’t get a prenuptial agreement before you got married, it’s in your best interest to set up a postnuptial agreement with your spouse.
Postnuptial agreements are easy enough to understand, since they work exactly the same as prenuptial agreements, the only difference being whether you set up the agreement before or after your marriage. This means that your postnuptial agreement has the same rules and restrictions as a prenuptial agreement, and a court could also throw it out if it isn’t done properly.
That’s why it’s crucial for you to consult with a postnuptial attorney both when you initially set up the agreement with your spouse and should you ever get divorced and need to go to court.
Why do you need a postnuptial attorney to handle your agreement? There are several requirements for the agreement that your attorney can ensure you fulfill.
One of the most common reasons courts throw out postnuptial agreements is because they’re not fair towards both parties. This is true whether the unfairness was intentional or unintentional. For example, a postnuptial agreement that promised all the couple’s property to one party likely wouldn’t stand.
It’s for this reason that both you and your spouse should have your own independent postnuptial attorneys representing you when you set up the agreement. This ensures that both of your interests are protected, and makes it far more likely that the agreement will be equitable. One attorney handling a postnuptial agreement can create a conflict of interest, and courts will look into the agreement more if there was only one attorney involved.
Considerations on Both Sides
Consideration is a legal term which means that each party must give something up when it receives something. This is another way to ensure that the agreement is fair. When dividing assets, this could mean that one party gives up their right to the house in exchange for a certain sum of money.
A postnuptial attorney can make sure that the agreement is valid in the sense that it’s not only one party giving things up.
Another common reason why courts throw out postnuptial agreements is that there wasn’t full disclosure at the time of the agreement. While setting up a postnuptial agreement, you and your spouse must list your current assets and any expected future assets, such as inheritances.
Intentionally failing to disclose an asset is fraud, but even if you simply forgot to disclose an asset, it can still result in the court deciding not to honor your postnuptial agreement. That’s why you need an experienced postnuptial attorney who has set up these agreements before and knows the most common types of assets that people forget. Your postnuptial attorney can go over everything with you, especially those tricky potential future assets, and make sure you don’t miss anything.
Like any legal contract, it’s considered invalid if one side was coerced into signing it. Both parties need to sign voluntarily. With postnuptial attorneys there, it’s much easier to prove that you and your spouse signed the agreement of your own free will. Your attorney and your spouse’s attorney can also ensure that the signing goes smoothly, because there are also requirements for the signature process. Failure to meet those requirements invalidates your postnuptial agreement.
Do You Need a Postnuptial Agreement?
Anyone who didn’t get a prenuptial agreement should act now and get a postnuptial agreement. It may not be foolproof, but it could end up protecting assets that you would have otherwise lost.
No one likes to think about a potential divorce while they’re married, but it can happen to anyone, especially considering the divorce rate tends to hover around 50 percent. Don’t put yourself at the mercy of a divorce court. A solid postnuptial agreement may make all the difference.
In your postnuptial agreement, you can specify what property belongs to you and what property belongs to your spouse so there isn’t any confusion or fighting over belongings. You also need to protect yourself from any potential financial issues during a divorce. If your spouse came into the marriage with debt, you don’t want to be liable for it should you two get divorced. And what about spousal support? Without a postnuptial agreement, you could end up paying a large portion of your income to an ex every month.
agreement route. You’ll want an attorney to help you during this process.
Some Reasons for Getting a Postnuptial
Same as with the writing of a prenuptial, in a postnuptial agreement, it is essential that both of the spouses be completely transparent about all their assets and debts. A postnuptial agreement can document the rights and responsibilities of the spouses during the marriage, as well as issues such as spousal maintenance and division of property if the couple should ever dissolve the marriage.
Changes in finances and roles sometimes occur. Some scenarios that might warrant a postnuptial include:
- One spouse may leave their career to stay home in the role of homemaker and raise the children. That spouse would want to be certain that their financial interests are protected in case of divorce.
- The spouses launch a business together and they need to put in writing the differences among marital and separate assets and business assets.
- One spouse comes into a major inheritance. IN most such cases, the family court judge would award the inheritance to that spouse only in case of divorce. A desire to distribute the inheritance in a different manner than it would be distributed under New York law or to clarify which property is part of the inheritance so it is not intermingled with marital assets could be captured in a postnuptial.
- The husband or wife racked up a whole lot of debt prior to the marriage, and the other spouse wants to make it clear that they will not be held responsible for those liabilities.
- Some occurrence triggered a loss of trust in the relationship. Infidelity, for example, is a common occurrence that causes people to want to enter a postnuptial agreement.
Let Us Handle Your Postnuptial Agreement
Regardless of how long you’ve been married, it’s never too late to get a postnuptial agreement. Contact us and we can represent you during the entire process, drawing up a postnuptial agreement that’s fair for both parties and protects your property in the event of a divorce.