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Post Nuptial Agreements

Married or not, every person has their own individual worth. They may have heirlooms that have been passed on through their family members. They may have a good income or sizable investments they want to protect. The could even have talents or ideas that could potentially bring them financial success and may want to protect that potential and anyone else’s ability to benefit from it — including their spouse.

In order to protect these things and others, it is often suggested that couples work out a prenuptial agreement. By doing this, the couple acknowledges that the marriage is a partnership, and in many ways it is similar to a business partnership. No matter how perfect for one another two people seem to be, break-ups can and do happen. Setting ground rules through a prenuptial or postnuptial agreement can bring some protection, but it is important to understand how these two agreements differ from one another.

Prenuptial vs. Postnuptial

The most obvious difference between a prenup and a postnup is that one is signed before a marriage takes place, and the other is negotiated after the wedding vows.

Many people assume that the differences stop there, but they don’t: A prenuptial agreement is assumed to be valid, while a post nuptial agreement is assumed to be invalid. Here’s why:

  • Before a marriage or other cohabitation a couple’s assets and debts are separate. After the marriage, many are considered shared.
  • It is more difficult to sever something that has already been defined as bonded than it is to break a connection that was never made to begin with.

One thing that can invalidate both types of agreements is an argument that one person’s willingness to agree to the terms was made due to some coercion rather than their own free will. The chance of this occurring increases after a marriage has taken place when there is a greater realization of what each person stands to lose or gain.

Why Bother with a Postnuptial Agreement?

While it is generally agreed that prenuptial agreements are the preferable choice, drawing up a postnuptial agreement can still be worthwhile.

The decisions made while crafting a postnuptial agreement are made while the marriage is somewhat healthy and both people are able to rationally discuss their individual value and make determinations that they are willing to agree on. This may not be the case if the couple is facing a divorce later on.

In many instances, the agreement made after a marriage can be considered to be a case of “better late than never.”

Some Information Is Discovered after the Vows

Nobody is perfect. Before marriage people might not see all of one another’s shortcomings or their own potential.

  • For example, they may know that their partner loves nice clothes, but may not realize that they have trouble with overspending.
  • A person might have a managed addiction that resurfaces after the marriage.

In some cases there may be infidelity or some other breach of trust. That person may be repentant and want to suggest terms of a postnuptial agreement that would benefit their partner in order to reaffirm their commitment to that person and motivate themselves to behave more honorably going forward.

These types of problems come up in marriages frequently. They are not enough to send the two running to divorce court, but it can open many people’s eyes to the possibility.

Unexpected Success or Challenges

Early in a marriage there might not be a lot for each person to gain or lose. The general assumption may be that the two will earn an average income, and each person will have a near equal contribution, financially speaking.

This can change. One member of the marriage ..

  • can have a business that takes off yields large profits
  • might be named an heir to a relative’s estate they had assumed they had no claim to
  • might become ill or need to give up their personal earnings in order to care for a child who has special needs
  • may realize they need to protect their ability to support themselves if they ever did become a single parent

Spousal support might be something they are considering for the first time. The marriage may still be strong, but having a post nuptial agreement can remove a lot of pressure. Neither person should feel as if they have to stay married because they can’t financially afford to be single.

If you’re concerned about keeping and protecting what’s yours if you ever got divorced, schedule a free consultation with the Law Office of Steven Fritsch to learn more about postnuptial agreements.