Kajko, Weisman & Colasanti, LLP

Will your postnuptial agreement hold up in court?

Most people are familiar with the legal document known as a prenuptial agreement. While previously believed to only be a necessity for individuals and couples of significant wealth, today more people are choosing to take steps to guard against a betrothed's financial liabilities and protect the assets they bring to a marriage.

For couples who failed to sign a prenuptial agreement, a postnuptial agreement may be used to provide some of the same protections. Essentially, a postnuptial agreement can be used to define perimeters around each spouse's claim to individual as well as shared assets. Events that may trigger one or both spouses to announce their desire to execute a postnup include a spouse's significant raise, new business venture and an expected inheritance. Additionally, in an attempt to save a marriage, such a document may also be drafted by a cheating spouse as an act of goodwill.

A 2015 survey conducted by the American Academy of Matrimonial Lawyers revealed that 50 percent reported experiencing an increase in the number of clients requesting postnuptial agreements since 2012. Survey respondents noted that nine out of 10 prenups that were drafted accounted for issues related to the division of property whereas roughly seven in 10 covered matters related to spousal support.

One caveat that should be noted with regard to postnuptial agreements is that, often, they are not viewed as being equal to prenuptial agreements. Once a couple is married, spouses are beholden to state laws and state family courts are given wide discretion over matters related to the division of marital assets. Still, when making decisions related to a divorce settlement, most judges will take a postnuptial agreement into consideration.

Source: Consumer Affairs, "Postnuptial agreements becoming more common, lawyers say," Mark Huffman, Dec. 29, 2015

The Daily Beast, "Postnups Becoming More Popular, but They’re Not for Everyone," Jacoba Urist, May 20, 2015

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