When a couple gets married, typically, they do not think they will end up getting a divorce. Couples get married to be together for life, not to plan for an eventual separation.
Consequently, wanting to arrange a prenuptial agreement for marriage may seem like believing the relationship is doomed to failure and be seen as a representation of a lack of true commitment.
Despite the best intentions and hopes of everlasting matrimony, in reality, many marriages end in divorce. Unfortunately, divorce is very common. According to Time magazine, as of 2018, 39% of U.S. marriages end in divorce. If a prenuptial agreement is not entered prior to marriage, a postnuptial agreement is still a viable option.
In reality, a prenuptial or postnuptial agreement is an effective way to set expectations and limit ulterior stressors in a relationship, helping remove legal entanglements from muddying relationship decision-making in marriage. Moreover, employing a prenuptial or postnuptial agreement can make the death of a spouse or a divorce less traumatic for everyone involved. In truth, both parties can employ a pragmatic approach to the marriage process while also being fully committed to the success of the relationship. If you live in Southern California, a highly qualified postnuptial and prenuptial agreement lawyer in Los Angeles can help you with crafting an effective postnuptial agreement.
What is a Postnuptial Agreement?
A postnuptial agreement is arranged after a couple becomes legally married and contains provisions for a variety of legal matters. A postnup can be understood as a valuable financial tool. The postnuptial agreement is a legal contract that creates an outline for how assets will be split and what each party in the marriage is entitled to in the event of a divorce. Each spouse agrees to this contract, and it is legally binding.
In many ways, a postnuptial agreement is nearly the same as a prenuptial agreement. Aside from the chronology of when the agreement is made, the main difference is that postnups are somewhat more vulnerable to scrutinization in the courts compared to prenups. Also, postnuptial agreements can be entered with only one attorney representing both parties in many states, limiting costs and simplifying the process. In contrast, a prenuptial agreement requires each party to be represented by a separate attorney. Nonetheless, postnuptial agreements are very effective at creating binding agreements related to finances and other matters.
What Does a Postnup Do?
Certain provisions exist to prepare the couple for the unexpected death of one or both partners. Others provide clarity for expectations following a divorce, limiting unnecessary hardship on those involved, including any children. According to Leon F. Bennett, a Woodland Hills divorce attorney, utilizing a postnuptial agreement can limit or remove lengthy and hostile legal battles that damage family relationships and create a significant financial burden. With a postnup, expectations are clearly set ahead of time, and the tumultuous divorce process is made significantly smoother and less contentious.
Alimony and Child Support
A postnuptial agreement can include provisions regarding alimony. A specific amount for alimony can be predetermined, or alimony can be eliminated entirely. Without a prenup or postnup, alimony may have to be provided to an ex-spouse. Without an agreement, the amount of alimony required to be paid after the divorce can be determined based on how much one spouse earns compared to the other.
Certain arrangements can be made regarding custody and child support. However, it is worth mentioning that prenuptial or postnuptial agreements sometimes cannot ensure outcomes for existing or planned future children, with the exception of children from outside the marriage. Arrangements regarding the couple’s children are scrutinized in court. Assets can also be protected to ensure children from previous relationships are the beneficiaries of certain assets.
Other provisions in a postnup cover property and assets. Prenups are especially important when one party is entering the marriage with a large estate or other significant assets. The splitting of property is often the most considerable item contested in a divorce. A postnuptial agreement can manage property and other items while removing unnecessary conflict. Additionally, if either party might receive a family inheritance or a large increase in pay from employment, the inherited asset or new income can be protected in a postnuptial agreement.
A couple can divide marital property or choose to have specific items kept out of the marriage, such as personal items. These personal items can include investments, holdings, real estate, or other types of assets that were only accessible to and owned by one member prior to the marriage. The postnuptial can also provide a separation of assets to other family members or dependents other than children from the current marriage or the spouse.
Married couples can gain debts. Debts can include credit cards, mortgages, subscriptions, healthcare expenses, and other shared bills. Provisions can be agreed on to determine how to divide debts upon divorce. Furthermore, provisions can be included to protect each party from the potential financial irresponsibility of the other. For example, an agreement can be made ensuring that if one party takes on a lot of debt due to gambling, the person who created the gambling debt will be responsible for reconciling the debt following divorce.
Distribution of Assets Following Death
The postnuptial agreement can include arrangements for what happens to assets if a spouse dies while married. This agreement can specify different outcomes depending on if the couple had been considering divorce or if proceedings for divorce were occurring while one party passed away. This provision in a postnup most often supersedes arrangements specified in the deceased’s last will and testament.
A Valid Postnuptial Agreement
A postnuptial agreement is only useful if it is valid. In order for it to be valid, certain features need to be present regarding the agreement. Otherwise, the contract may not be legally binding.
- The postnuptial agreement has to be put in writing. Any verbal agreement made will most likely not hold up under scrutiny in court. Additionally, in some states, both a notary and a witness are required for signing. The postnup must be a completed legal document.
- A valid postnuptial agreement is required to consist of factually correct and complete information. If the agreement is found to contain false information or partial information, the agreement could be invalidated in court. Incomplete or false information could include items such as a spouse not fully disclosing or lying about their debts in the agreement.
- A postnuptial agreement must be fair to each spouse. Any agreement that is considered highly unfair to one party or is unconscionable could be thrown out in court. An experienced family law attorney can help couples build a legally fair contract.
- Each party is required to have read the agreement and to not have been in a state of duress when signing. If a spouse was feeling pressured or did not have sufficient time to read the document in its entirety, the agreement can be invalidated in court.
Why Get a Prenup?
The unfortunate outcome of a divorce is often considered one of the most traumatic processes in an individual’s life. Many married couples see that a postnuptial agreement is appropriate and beneficial to them if they are realistic about adversities that may be faced in life and desire a clear picture of what the process of divorce will entail.
A postnuptial agreement will provide the framework to handle financial conflicts efficiently and in an amicable manner. Since both parties agreed ahead of time on these details in a legally binding agreement, much of the heartache, financial burden, and potential malevolence that often follows a divorce is avoided. Having a solid postnuptial agreement will limit the need for drawn-out court battles or even less protracted legal negotiations related to divorce, such as divorce mediation. Divorce mediation in Los Angeles has become a popular alternative to protracted court battles that often occur in a divorce, where instead, a neutral third party can mediate the negotiations in a more amicable way.
Additionally, the postnuptial agreement provides a safeguard for married couples that protects each person from a number of negative consequences related to divorce. It minimizes conflict that can be toxic to a family following an already difficult and traumatic situation. Adverse life circumstances can develop for either spouse that were not anticipated prior to marriage. It is important that each party plans for unexpected outcomes to help ensure a happy life and a less stressful marriage.
When hiring a family law divorce attorney, it is crucial to ensure your attorney has a significant amount of experience in the specialty of prenuptial and postnuptial agreements. An attorney who has not seen a large number of iterations of these agreements scrutinized in courts will be less able to craft a valid and fair agreement that can be relied upon during a divorce.
Knowledge of what works and what does not based on years of experience in pressure testing prenuptial and postnuptial agreements under court scrutiny will ensure that your agreement remains binding.