Beyond the emotional, painful experience of the divorce itself, comes the difficult task of dividing marital property between husband and wife.
Although it may be a delicate problem for spouses to discuss, it is often useful to have your lawyer draft a Postnuptial Agreement which outlines the rights and responsibilities of a married couple in the event of a future divorce. Once signed by husband and wife, the Postnuptial Agreement becomes a legal contract, even before the divorce decree is entered. Further, the Postnuptial Agreement is customized to meet the specific needs of the divorcing couple. This type of agreement gives both husband and wife a greater sense of security, in what is typically a very chaotic time.
Beside property issues, Postnuptial Agreements can be used to address many topics such as: child custody, child support, secondary education, life insurance, health insurance, income tax, and other matters that are important to a divorcing couple.
Once the decision to enter into such an agreement is made by the spouses, it is vitally important that both spouses have their own attorney in the drafting and review of Postnuptial Agreement. Separate counsel can help mitigate against the effects of one spouse over-reaching or coercing the other (and this situation does provide for such potential) and will help eliminate either party arguing that the Postnuptial Agreement is unenforceable.
Before going to your lawyer’s office to have a Postnuptial Agreement prepared, you should put together a list of the topics that you want covered in the agreement. For example, make a list of your marital assets and debts so that your lawyer can carefully examine your plan for property division. Do your best to include the values of the marital home, automobiles, bank accounts, investment plans, pension plans, etc. Specifically describe your debts, including mortgages, loans, and credit card balances. Tell your lawyer about bankruptcies, tax issues, or any other financial problems you have or anticipate having in the future. It is important that assets, debts and other financial matters are completely disclosed and acknowledged. It is not only fair to do this, it may be vital to the enforceability of the Agreement.
With this information the lawyers will draft the Postnuptial Agreement with the plan to address the goals of the parties. Often changes are made and eventually a compromise plan is reached which both spouses can live with. If the husband and wife are able to negotiate an acceptable agreement, they will save themselves the grief and considerable expense of fighting these issues out in court.
Finally, Postnuptial Agreements may be useful upon the death of one of the spouses. Because the Postnuptial Agreement is a binding contract, it is usually given effect before the provisions of a will. This can be a useful tool in effecting a smooth estate administration where there is contention among the beneficiaries. We have, for example, seen it used effectively in the case of a “mixed family” where the first of the spouses to die had children which were not children of the marriage and valuable assets and the surviving spouse’s right to the marital home were at stake.
If you have any questions about Postnuptial Agreements or Family law, please contact our office.