Postmarital Agreements

Definition

A postmarital agreement, or postnuptial agreement, is an agreement executed by a husband and wife after they are married.

Purpose

Like a premarital agreement, a postmarital agreement defines the property rights of the spouses in the event of divorce or death. A postmarital agreement may be used to define a spouse’s rights upon divorce, change the legal status of property, limit one spouse’s liability for the other spouse’s debts, or protect the inheritance rights of a spouse’s children or grandchildren from another marriage.

Requirements

The requirements for a postmarital agreement are generally the same as the requirements for a premarital agreement. A postmarital agreement must be:

* In Writing.

* Signed by Both Spouses.

* Voluntary. Both spouses must voluntarily enter into the agreement.

* After Full Disclosure of Income and Assets. A spouse must fully and accurately disclose his or her income and assets to the other spouse before the agreement is executed. A court may refuse to enforce a postmarital agreement if a spouse did not make a full and accurate disclosure before the agreement was signed.

* Free From Fraud and Duress. A spouse who has inaccurately or incompletely disclosed his or her income and assets may be guilty of fraud. A postmarital agreement may be a result of duress if it was coerced by physical or emotional abuse, threats of physical harm, or extreme emotional pressure. A postmarital agreement is unenforceable if it is a result of fraud or duress.

* Fair. A postmarital agreement must be fair under the circumstances. If a court determines that a postmarital agreement will produce an unfair result, the court may refuse to enforce the agreement.