What is a postnuptial agreement and can it help protect my assets

When two people get married, they become a union in the eyes of the law.  This means they can share retirement benefits, may decide to pay taxes jointly, and make changes to their health and life insurance policies.  Once a couple legally gets married they begin to acquire marital property.  Marital property is any asset acquired during the marriage using joint funds.  What is a postnuptial agreement and does it help

Postnuptial agreements can help prevent long legal battles in the event of a divorce, whether an uncontested divorce or otherwise, and can ensure the property is fairly distributed.  Postnuptial agreements are in a sense similar to prenuptial agreements in that they are both designed to protect assets in the event of a divorce. 

The main difference between a prenuptial and postnuptial agreement is that prenuptial agreements are entered into prior to a marriage and postnuptial agreements happen after a couple has gotten married. Postnuptial agreements are meant to protect assets collected during the marriage. It is a legally binding document that indicates who will get which financial assets in the event of a divorce.  

Here are some items to think about including in your postnuptial agreement:

  • Asset division:  A postnuptial agreement can outline how premarriage and post marriage assets should be divided in the event of a divorce.
  • Marital debts:  Just like a married couple may gain assets during a marriage they may also collect debts.  These can include credit cards, mortgages, and healthcare expenses, among others.  A couple can include information on how to divide these debts in a postnuptial agreement
  • Child care/support
  • Alimony
  • Asset distribution after death.  A postnuptial agreement can actually supersede a last will and testament.

If you entered into a marriage without a prenuptial agreement then there could be a number of reasons to consider a postnuptial agreement.  Come of the most common reasons are:

  • Asset protection for self
  • Asset protection for children
  • Alimony
  • Financial irresponsibility:  During the course of a marriage someone may have collected debts or have legal troubles that the other spouse does not want to have impact them in the event of a divorce in Madison County, or anywhere else in Alabama.  One example could be gambling debt.
  • Clarification in case of divorce.  Some couples may just want clarification about the future in case the marriage does not work out the way they would hope.

Just like with any other legal document, a postnuptial agreement must meet certain requirements in order to be valid:

  • It must be in writing.  An oral or verbal agreement will not likely be held up in court.
  • Both parties must have enough time to read the agreement and not feel pressured/duress when signing it.
  • The agreement must be seen as fair to both sides.  
  • It must contain only complete and factual information.  If there is incomplete or untrue information in the postnuptial agreement then the court could choose to invalidate it.  One example is if a spouse did not disclose all of their debts.
  • The postnuptial agreement must be completed correctly.  Depending on the state it may require witnesses and a notary.  If proper procedures are not followed, the court can throw it out.

One of the most beneficial reasons for having a postnuptial agreement is simply peace of mind.  Whether it’s just for future security purposes or if the marriage has actually taken a turn for the worst, it’s best to protect yourselves and put things in place.  A postnuptial agreement can give you peace of mind so, if need be, you can focus on repairing your relationship in the hopes of never having to use the agreement.  It’s always better to have these discussions when you’re still on good or semi-good terms with your spouse rather than when emotions are running high.  If you’d like to discuss the process involved in creating a postnuptial agreement or if it’s good for you, please contact an experienced Birmingham divorce attorney.

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