And yet, after the couple has each said, “I do,” the marital landscape can change. Personal issues from the past can catapult themselves into the present. Sometimes financial problems can arise in ways that no one could ever have imagined. All too often, these sorts of situations cause conflict in the couple’s relationship. In such times, it may be advantageous for the couple to negotiate and execute a postnuptial agreement.
Postnuptial Agreements – What Are They?
What is a postnuptial agreement (or “postnup”) and what considerations should be kept in mind when one is drafted? Simply stated, a postnuptial agreement is a legal contract negotiated and signed by a couple after they have married. Postnuptial agreements differ significantly from other sorts of contracts in the following ways:
- They are not considered to have been negotiated “at arm’s length.” Contrast a postnuptial agreement to the purchase or sale of a car. In a purely commercial setting, the two sides are usually said to be “at arm’s length,” since neither is compelled to deal with the other. If the two sides disagree, the prospective purchaser can move on to the next dealer. This is not the case with discussions between spouses. Even when one spouse decides to divorce, there are important, and sometimes expensive, considerations that come into play.
- Spouses have certain legal rights to the property of the other that flow directly from the fact that the two are married. Accordingly, courts are wary of situations in which one spouse gives up significant property rights without receiving something of comparable value.
- They usually deal with very personal issues, such as allowances for child support or division of property. They sometimes carve out portions of a spouse’s estate for children born from an earlier marriage. The emotional climate is often tense, since much is often at stake.
- Sometimes postnups are negotiated with divorce in mind. They can handle property division, spousal and child support and other post-marriage issues. At other times, they are negotiated as a means of avoiding divorce.
Other Considerations in Crafting Postnuptial Agreements
There are a number of other things to keep in mind:
- Each side should have separate legal counsel. To the extent that it later becomes necessary for a court to interpret or enforce the agreement, the court may refuse to do so if one of the parties – particularly the party in the weaker financial position – is unrepresented.
- The agreement should be fair. As noted above, if one spouse gives up significant rights without receiving comparable value, a court may refuse to enforce the postnuptial agreement.
- Although postnuptial agreements, by their nature, focus on areas of conflict between the married couple, they can actually be vehicles to resolve that conflict.
Might a Postnuptial Agreement Be in Order for You?
Have conflicts arisen within your marriage that you think could or should be handled with a postnuptial agreement? Are you contemplating divorce and need to consider the financial and legal impact that such a decision might entail? If so, you need effective representation by attorney you can trust. The attorney at Beller Law, P.L. have broad experience in family law and are prepared to help you move forward. Our attorney offer our clients years of experience and expertise in Duval, Clay, St. Johns, Flagler, and Putnam counties. Call us at (904) 288–4414 or complete our online form.