Post-nuptial Agreements are contracts entered into between married persons for purposes which often include the identification and ownership of property.  Importantly, the agreement may dictate the basis for settlement of these marital issues in the event the spouses subsequently divorce, ideally eliminating the necessity for a trial.  By statute, post-nuptial Agreements cannot set alimony.  In addition, post-nuptial Agreements cannot set child custody or child support.

A post-nuptial Agreement is different than a Prenuptial Agreement.  A Prenuptial agreement is a contract between persons who intend to marry, and is designed to identify and deal with the properties owned by them individually at the time of marriage, and the treatment of those interests and other issues which may thereafter arise should be parties marry (See Prenuptial Agreements).  Post-nuptial agreements are contracts between already married spouses and are generally used to determine community and separate property rights.

There are various reasons why spouses consider entering into a post-nuptial agreement, while still married.  One reason is that they are separated and attempting to reconcile their differences.  Reconciliation is more unlikely if disagreements over property stand in the way.  Often settling those issues in advance can remove an important impediment to a successful reconciliation.  Another reason arises in cases where there are on-going disagreements concerning the ownership and management of property.  Rather than to allow their relationship to deteriorate further, they agree to first address property issues.  With such issues settled, the parties can focus on their marital relationship..

In a post-nuptial Agreement, the spouses are married and agree to thereafter remain married until either spouse decides to file for a divorce.  In that event, the terms and conditions of their post-nuptial Agreement are effective when the contract is executed by each spouse.  In the event of a divorce, their agreement may dictate the terms of their decree of divorce.

The formalities of the negotiation process is set by law, understanding that there exists as a matter of law, a fiduciary responsibility upon each spouse to be honest, fair, and abstain from trickery.  Certain legal requirements apply, before their contract is enforceable:  (i) the agreement must be voluntary.  That is, each party agreed to the terms without threats, force or undue influence of any kind; (ii) the terms of the agreement must be fair under the circumstances; (iii) each party has fully disclosed all property and financial obligations; (iv) each party had the opportunity to retain legal counsel to advise them regarding all aspects of the agreement.  
It is important for a spouse contemplating a post-nuptial Agreement to obtain advice from a skilled family law attorney.

LOGAR PULVER is at the forefront in knowledge and experience regarding both Pre and post-nuptial Agreements.  We educate, counsel, negotiate and prepare those agreements with skill and regularity. 

Disclaimer: This website and the articles and content thereon are for general informational purposes only and do not constitute legal advice.  Every case varies greatly and one should consult a knowledgeable family law attorney regarding one’s rights and obligations.    No attorney client relationship may be established as a result of reading or reviewing this article or any information on this website.  If you would like to consult with Logar Pulver please contact us.