Although not required by law, attorneys should advise any clients considering a postnuptial agreement to put the agreement in writing. It is true that in some situations an oral agreement is valid and enforceable, but a written document is valuable for two significant reasons. One, the courts have traditionally closely scrutinized postnuptial agreements regardless of the form in which they are stated. Two, if properly drafted, there are no gray areas. Each party is on the same page and there is little or no wiggle room for extended negotiations.
The courts originally did not favor postnuptial agreements based on the fact that a married couple under the law was considered a single person and a person cannot have a contract between himself or herself. Additionally, postnuptial agreements were believed to encourage divorce proceedings. The prevailing theory was that the instruments could be used as tools for divorce planning. For example, if one spouse believed the marriage was in trouble, he or she might pressure the other spouse into signing a postnuptial agreement to his or her greater benefit.
Times have changed and most state courts are willing to enforce proper postnuptial agreements. Each party to the proposed agreement should be represented by an attorney because the situation is considerably different from that of a prenuptial agreement.
Before two people are married neither party has any family rights over the other because the family does not yet exist. Once the parties are married, each one has well-defined legal rights regarding property rights and spousal support. Some of these rights will, obviously, be given up in any postnuptial agreement.
Attorneys should make sure that the intentions of the parties are clearly stated and understandable. If a right or group of rights is given up, they too should be clearly stated. Putting stipulations in writing should eliminate confusion, misrepresentation and unnecessary ongoing negotiations should enforcement become necessary.
The Basics of Any Written Postnuptial Agreement
- Complete legal names of each party.
- A statement that the parties are married and intend to stay married.
- A statement that each party agrees that it is appropriate, proper and beneficial to enter the agreement.
- Purpose of the agreement.
- It may define each party’s rights to the other’s property and his or her obligations regarding that property in the event of divorce or death.
- Full financial disclosure.
That final item is significant. If the court determines that a postnuptial agreement is unfair to a spouse, the failure to make full financial disclosure will render the agreement unenforceable.
In writing the agreement, be aware that terminology excluded from use in a prenuptial agreement also cannot be used in a postnuptial agreement.
Within realistic guidelines, there is no limit on the depth of detail in a postnuptial agreement. Some are single issue agreements. For example, the agreement may focus solely on spousal support after the divorce or the distribution of a certain asset after divorce or death. Other agreements may be lengthy and concern themselves with a list of issues and assets.
The use of postnuptial agreements is more common than most people think. They can be useful, legally-binding documents that remove doubt, reduce or eliminate confusion in an often complex and emotionally charged environment, and assure that the process enacted upon dissolution of marriage or a death is an asset instead of a challenge to the parties involved.
Again, those benefits are enhanced when the agreement is put into written form. Doreen Yaffa