Post Nuptial Agreements
A post nuptial agreement is a contract formed between spouses at any time after a wedding has occurred. Often the formation of a post nuptial agreement can alleviate stress between spouses as it gives them the opportunity to review and discuss their economic needs. If challenged in court, a post nuptial agreement may be scrutinized more carefully than a prenup since an upcoming marriage is not used as an incentive for its formation. Additionally, a post nup may be held to a higher standard of fairness than a prenup.
Open and honest discussions between spouses prior to the formation of a post nuptial agreement are essential. A conversation should include a full and fair disclosure of all assets and debts including the possibility of future income opportunities. Discussions regarding the couple’s current financial status and the division of property in the event of death or divorce are also important.
A post nuptial agreement should fully describe all the assets, liabilities, income and expectations of gifts or inheritances of the spouses. The agreement will effectively set forth how the couple’s property, including the marital residence, will be divided and marital debts paid in the event of death or divorce. A post nup can also set forth provisions for alimony, maintenance or spousal support, death benefits and medical, disability and long term care coverage.
The validity of a post nuptial agreement can be challenged. In determining whether to uphold an agreement, a judge will consider whether there has been full disclosure of all assets, if there was a lack of duress in the formation of the post nup and whether the contract is fair to both sides. Additionally, it is essential that both spouses retain separate attorneys to represent their interests.
A post nuptial agreement should be reviewed periodically especially if a couple’s financial circumstances change or if the spouses move, since the laws regarding the validity of post nuptial agreements, and the terms thereof, may vary between states.