Are Postnuptial Agreements Enforceable?
Although not always enforceable, they could spare spouses expensive cases of divorce
Prenuptial agreements, or prenups, have long been an alternative for couples that are engaged. They make future spouses mediate the separation of assets, in addition to the responsibility for liabilities they possess, should their marriage lose its way. Nevertheless, those same questions can time to time stick around—or become more vital—long after the two have signed the marriage certificate. Therefore, postnuptial agreements, or postnups, are quickly picking up steam.
Postnups are intended to settle some of the same matters a prenup does, like who gets which property and how much spousal support a spouse is going to receive following a split, however, in this case, the agreement is signed following the wedding. It’s a means for couples to define what is going to happen should a divorce occur.
Understanding Postnups
Although mid-marriage agreements are still a somewhat new legal device, a developing number of spouses are becoming mindful of them. In a 2015 report by the AAML, 90% of attorney’s account that division of assets was one of the more general areas dealt with by these contracts, ahead of spousal support (73%) and pension plans (45%).
This trend continues to develop. In 2022, a Harris Poll discovered 15% of marriages or newly engaged couples had signed a property division contract, a 500% increase from twelve years prior.
The contract can be in place throughout the marriage, or it may include an automatic termination provision which will expire after a specific number of years. If the couple ends up getting a divorce and the contract is no longer in force, their marital assets and debts would be distributed according to state law.
Amid the decisions, postnups don’t deal with, is how child custody is going to be appointed or what the child support provisions are going to be following a divorce. Those are matters that the courts eventually must decide.
Postnuptial Agreements Reasons
Couples may pursue postnuptial agreements for a countless number of reasons. It may be that they just didn’t get around to creating a prenup prior to their marriage. Using a postnuptial agreement, they can resolve the same financial deliberation they wanted to address from the beginning—albeit following the exchanging of vows. Conversely, there’s an important life event that takes them down this path. The below are among the situations in which couples may pursue a postnup.
- Safeguarding an Inheritance
- Supporting Stay-At-Home Spouses
- Repayment of Gifts
- Reestablishing a Relationship
- Separating Interest in a Business
How Much Is It Going to Cost?
Although having a postnup might be a wise option for particular couples, these agreements typically don’t come cheap. To avoid disagreements, each spouse is required to have their own legal representation to create the agreement, and that can result in considerable attorney expenses.
Each spouse could end up paying a couple of thousand dollars, especially for more substantial estates or in cases in which a business is involved. Nevertheless, working things out throughout the marriage is less grueling than the alternative. Don’t forget that couples that have talked in advance and seem to be in agreement can be able to better keep expenses under control.
State Laws and Enforceability
Prior to moving forward with a postnup, it’s also worth remembering that these agreements are readily enforced in many states than in others. A lot of courts tend to uphold the agreements provided that they are written, signed without intimidation, and involve a complete financial disclosure from both parties.
Nevertheless, some jurisdictions put up added restrictions or have specific terminology for postnups in their area. For instance, in California, in which spouses have a fiduciary duty to one another, the agreement is required to reflect “the highest good faith and fair dealing [by] each spouse, and neither shall take any unfair advantage of the other.”
Since these agreements are less common than prenups are, many states frankly don’t have much case law with which to assess them. That’s why it’s vital to get a local family law attorney that can help negotiate an agreement that a court upholds.
Prenups, on the contrary, have a lengthy history and benefit from national acceptance. In theory, making them a better resolution when it comes to determine what is going to happen to your financial assets and responsibility. On paper, nevertheless, it is that a lot of couples are going to witness their financial picture change considerably during their marriage; postnups are a way to deal with those changing situations.
Speak With Our Estate Planning Attorneys In Phoenix, Arizona Today
Estate planning is the right thing to do for the people you love. It’s another way to say “thank you” to those who love you. Some of the decisions are hard, but at Ogborne Law, we will help you navigate these difficult decisions.
Your Arizona estate planning attorney can help you select a will or trust or both. Your estate solution will work for you. You will have the peace of mind that comes with effective planning for the future. Call 602.343.1435 or contact Ogborne Law with questions.
