Post-Nup Agreements

Most states recognize postnuptial agreements.

Spouses that do not have a prenuptial agreement may want to enter into a postnuptial agreement after the marriage has occurred. Postnuptial agreements, similar to prenuptials, detail how property will be divided and how spousal support will be awarded should the parties subsequently divorce.

Function

Postnuptial agreements, also known as antenuptial agreements, must be in writing and signed by both spouses. Spouses without prenuptial or postnuptial agreements who cannot agree upon the property distribution of marital and separate assets are subject to their state's divorce laws and judicial interpretation when divorcing.

Features

State laws vary regarding requirements of the postnuptial agreement terms and provisions. A few states do not regard postnuptial agreements as legally valid instruments. States that do recognize their validity require full financial disclosure during the negotiations through an arms-length transaction free of duress. Most states recognize postnuptial agreements as a valid agreement between spouses if there is full disclosure and separate attorneys for each spouse. Some states do not allow a complete waiver of spousal support awards between spouses.

Considerations

No state allows a postnuptial agreement to determine child support awards or custody and visitation arrangements. Each state's guidelines set forth mandatory child support amounts determined by the state's legislature. Upon divorce, judges use the presumptive guideline amount and adjust according to judicial discretion.

References

• Lawyers.com: Cohabitation, Prenuptial and Postnuptial Agreements
• Equality in Marriage Institute: Creating a Postnuptial Agreement