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May 7, 2021
Post-Nuptial Agreements: Factors To Consider

Litigating a divorce can be expensive for all parties involved. A post-nuptial agreement can be an excellent way for you and your spouse to get on the same page about the division of the marital estate. Having this agreement doesn’t obligate you to divorce. However, it can ensure that your assets will be protected and predictably divided if you and your spouse decide to separate. 

Let’s discuss how a post-nuptial agreement, or postnup, can be one of the most critical tools in your marriage exit strategy.

What is a Post-Nup?

A postnup is an agreement two spouses enter into during a divorce. Compared to a pre-nuptial agreement, which spouses sign before legally marrying. In a postnup, the spouses commit to the specific terms under which their marriage will be dissolving. This can help minimize the amount of litigation over common dissolution issues.

In a prenup, it can be tough to know how specific commitments will shake out during marriage. Who will be the primary breadwinner? Who will handle household finances? And who will spend the most money on non-necessities? As a result, a prenup may not provide the most equitable way to divide assets.

A postnup, on the other hand, can be entered into with eyes wide open. Because you’ll have a better idea of who has contributed what (money, time, effort) to your marital estate. You’ll be better able to reach an equitable agreement that adequately compensates for each spouse’s contributions. A postnup can also address custody issues and child support. Which allows the spouses with significant discretion in handling their kids’ schedules instead of leaving it up to a trial court to decide. 

Factors to Consider When Entering a Post-Nup

Although postnups can provide both parties with an equal bargaining ground, they don’t always work out that way in practice. There are some common pitfalls to watch for to ensure that you’re well-protected. 

First, and most importantly, seek legal counsel before signing a postnup. Even if the agreement sounds fair to you, an attorney can be looking for potential complications or unaddressed issues that may cause problems later.  Generally speaking, the spouse pushing for a postnup is the one with the most to lose (or gain) potentially. Beware of appeals to emotion.

A postnup must meet some stringent requirements to be enforceable. Other potential provisions, like waiving child support, may be prohibited under state law. Your attorney’s review of a proposed postnup can ensure that this agreement can be enforced if you need it.

If you’ve already signed a postnup without seeking legal advice, it may not be too late to have it reviewed by an attorney. If you’re within a relatively short time frame after the postnup was signed, you may be able to petition to have it invalidated or set aside.  

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