Post-nuptial agreements
A post-nuptial agreement is a binding, written contract executed after a marriage or civil union to settle a couple’s affairs and assets in the event of a separation or divorce. Often, the ideal course is to negotiate an agreement before marriage and confirm the agreement after the marriage takes place.
The crucial difference between a pre-nuptial agreement and a post-nuptial agreement is the timing – because they are entered into after the couple has married, the terms are no longer viewed as the price one party extracts from the other for his or her willingness to marry.
On the basis of this important difference judges have ruled that, subject to certain criteria, spousal agreements entered into at any time after the date of the marriage are binding even if they do not reflect what a court would have done on divorce. A court is therefore likely to uphold the terms as long it considers it just to do so in light of any changed
circumstances, and so long as there was no unfair exploitation of superior strength or duress, undue influence or unfair pressure to sign.
Our family solicitors can provide the best possible legal advice to help you safeguard your wealth. Regardless of your circumstances, our highly experienced family lawyers can advise and prepare a post-nuptial agreement tailored to your needs.
What you need to consider:
In general, you will want to consider and discuss
the following with your spouse:
- Discuss all the assets and debts of your relationship as well as future income opportunities.
- Discuss the current financial status of your relationship including spending habits, roles and responsibilities and any concerns you have over money matters.
- Be open and honest about your assumptions and expectations of how property would be handled in the case of death or divorce. Draw up and sign the agreement with the help of two lawyers. It is critical that you are each represented independently to maintain the contracts legal validity.
- Revisit the contract periodically, especially if your lifestyle or financial status changes drastically. If you move to a different state, check to make sure the laws or legal precedents don’t affect the status of your contract.
What should be included in a postnup?
- List all assets, liabilities, income, and expectations of gifts and inheritances.
- Describe how post-marital debts will be paid.
- Resolve what happens to your post-marital property in reference to appreciation, gains, income, rentals, dividends and proceeds of such property- in the event of death or divorce.
- Resolve what happens to your post-marital property in the event of death or divorce.
- Decide who, or if both of you, will own the marital residence and secondary homes in the event of death or divorce.
- Specify the status of gifts, inheritances, and trusts either spouse receives or benefits from, whether before or after marriage.
- Clarify what will happen to each type of property, whether jointly or individually owned, such as real estate, artwork and jewelry.
- Figure out alimony, maintenance, or spousal support, or provide for a waiver or property settlement instead of support (to the extent allowable by law).
- Detail death benefits, stating what you will provide for in your will.
For further advice please contact one of our family solicitors.
