Understanding the Purpose of a postnuptial Agreement
As the rate of divorce has risen sharply over the past years, more and more couples are executing the option to create a pre or postnuptial, also referred to as a pre or postmarital, agreement. A prenuptial agreement is done before the marriage takes place while a postnuptial agreement is done after the marriage.In either case, the document must be written, no other form such as a recording or oral transmission will be accepted by the court. Both parties must sign, and their signatures must be witnessed and notarized. Both parties must speak and understand English, or an interpreter speaking the language of the non-English speaking party must be present to explain what is being signed. Neither party must be coerced or pressured in any way to sign the agreement, and both parties must be represented by equally qualified legal professionals. Child support,parental time sharing, parenting plans, temporary alimony, and attorney fees cannot be a part of a pre or postnuptial agreement. And, should the court find either party has lied in filling out the financial disclosure required by each party the agreement will be null and void, not usable by the court.
While reasons for creating a postnuptial agreement may be similar to those wanting a prenuptial agreement, such as the keeping of a business, declaring how property will be distributed, deciding on alimony (except temporary), or who should get the dog/cat, there are other reasons a couple decides to create a postnuptial agreement after marriage. Probably the main reason is that parties may sense-tension and want to be sure their best interests would be served should there bea divorce in the future. Other reasons include:
- A spouse may become terminally ill and want to ensure the inheritance rights of his or her children from a former marriage, and any assets left after debts are paid will be divided as he or she wishes.
- One spouse may have spent a great deal of money and put the marriage finances at risk. The other spouse insists on a postnuptial agreement to ensure this can’t continue and define the errant spouse’s obligation to pay off the debt that, should there be a divorce, would, without a postnuptial agreement, be considered marital debt.
- During the marriage, there has been an acquisition of say, paintings, and the couple wants to be sure each gets the paintings of their choice, In other words, make the paintings non marital property by virtue of the postnuptial agreement.
- A pet is acquired after the marriage, and the couple doesn’t want a judge deciding who should keep the pet should a divorce need to happen.
- There are investments, retirement funds, and a variety of financial entanglements that a party may find necessary to have relegated in case of a potential divorce, issues that were not present before the marriage.
