Postnuptial Agreements: Better Late Than Never
A properly executed, valid agreement made before or after a couple marries should simplify divorce proceedings. Prenuptial (or in Pennsylvania, premarital) agreements are better known and, generally, easier to enforce. A contract made after a marriage takes place (a postnuptial agreement), though different, can accomplish many of the same goals and be very useful if you divorce.
What Can a Postnuptial Agreement Cover?
Postnuptial agreements can cover critical issues, so you should have legal representation when one is negotiated and executed. Without a lawyer’s help, you may agree to a one-sided contract that can severely disadvantage you if you divorce. A red flag would be if your spouse is represented by an attorney, but you’re not.
Postnuptial agreements can lay out what happens to the couple’s assets and debts if they divorce, ideally shortening the divorce process and simplifying it. A wide range of issues can be covered, including what happens to a business that one or both parties own. They can also set down rules on what will happen to assets if a spouse engages in destructive habits like infidelity, substance abuse, or squandering the couple’s resources.
What Must a Postnuptial Agreement Have to be Enforced By a Court?
There are many potential issues concerning the enforceability of Pennsylvania postnuptial agreements:
- They must be in writing.
- There should be full disclosure by both parties of income, assets, and property, but that can be waived by one or both parties.
- A postnuptial agreement, ideally, should be fair, but that’s not a requirement. Courts interpret these agreements by using contract law. Its focus is more on the fairness of the process and less on the outcome, though a court wouldn’t approve of a spouse being left destitute.
- Both parties must voluntarily and fully agree to the agreement’s terms. A spouse may claim their agreement was the result of fraud or duress, so it shouldn’t be enforced.
If you’re going through the time and expense of this process, you should make sure what you want becomes a reality. Legal representation should prevent enforcement problems before they happen.
When Only One Spouse Wants a Postnuptial Agreement
Agreements can be very helpful from a legal perspective, but creating one may not excite your spouse as much as your lawyer.
- Both of you may have fundamental disagreements about how assets would be handled through a divorce
- One may fear the process of creating a postnuptial agreement will needlessly add stress to your relationship
- If one of you earns much more than the other, the one making less may fear an agreement will put them at a disadvantage
If these are issues, the two of you should have open and honest discussions. If creating an agreement is important to you, but your spouse refuses, contact our office so we can talk about this and the best way to move forward.
If you have any questions about postnuptial agreements or want help negotiating and drafting one, please contact us here at Karen Ann Ulmer, P.C. We can discuss your options and how we can help you.