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Postnuptial Agreements

Latest Trend in Promoting Harmony in Marriage

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Couple Signing Contract
Don Klumpp/The Image Bank/Getty Images
Used by some marriage therapists and attorneys to promote harmony in a troubled marriage, here's the definition of a postnuptial agreement, reasons for obtaining a post nuptial agreement, and the validity of a postnuptial agreement.

What is a Postnuptial Agreement?

A postnuptial agreement is a voluntary marriage contract between spouses that is created after their wedding.

It is important that each of you have your own legal counsel before signing a postnuptial agreement.

Why Should a Married Couple Create a Postnuptial Agreement?

Many married couples create postnuptial agreements to help resolve issues in their marriage by removing a source of disagreement over finances, assets, children, chores, etc. Postnuptial agreements are also used by spouses as a way of controlling certain behaviors, such as adultery or over spending.

Another reason to create a postnuptial agreement is if the financial status of either spouse changes after their wedding. Changes in a career, receiving an inheritance, experiencing a change in investment income, selling a business, etc. are all valid reasons to want a postnuptial agreement.

For some couples a postnuptial agreement can stop conflict and promote harmony in their marriage.

What is the Validity of a Postnuptial Agreement?

Historically, postnuptial agreements were not considered valid.
    "The common law in the USA during most of the 1800s was that a husband and wife could not make a legally binding contract between themselves. The reason for this rule is that the identities of two parties (i.e., husband and wife) merged into one at the time of the marriage, and the law does not recognize a contract with just one part. Furthermore, a married woman could not make a valid contract with anyone (including her husband), except regarding her separate property."
    Source: rbs2.com (pdf file)

Currently, the validity of postnuptial agreements varies from locale to locale. Remember, it is vital that each of you contact a separate attorney before signing any postnuptial agreement.

There are three criteria that judges use to determine the validity of a postnuptial agreement:

  • Has there been full disclosure of assets in the postnuptial agreement?

  • Has there been a lack of duress in the creation of the postnuptial agreement?

  • Is the postnuptial agreement fair to both parties?

A postnuptial agreement can also be referred to as

  • Post marriage agreement
  • Marriage agreement
  • Mid-marriage agreement
  • Postmarital agreement
  • Post-nuptial agreement
  • Post nuptial agreement

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