Postnuptial Agreements: When Are They Necessary?

“Marital contracts are not the product of classic arm’s-length bargaining, but that does not make them necessarily coercive. Such contracts may inhibit the dissolution of a marriage or may protect the interests of third parties such as children from a prior relationship.”  Chief Justice Margaret H. Marshall.

Unlike Prenuptial Agreements, which are drafted before a couple marries, a postnuptial agreement is entered into by a couple who is already married. The Postnuptial Agreement, which is often drafted in an attempt to improve a marriage, details the settlement in the event of a divorce. It is different from a Separation Agreement, which is used to actually get a couple divorced.

In order to be considered fair and just, the judge will consider:

(1)   whether the agreement was free of coercion or fraud;

(2) whether each party knowingly, and in writing, waived his or her rights to property and support upon divorce;

(3) whether each party had the opportunity to hire counsel;

(4) whether each party provided full and fair disclosure of finances, including current and reasonably anticipated assets, income and liabilities; and

(5) whether the agreement was substantively fair and reasonable at the time of execution and upon divorce.

The burden of satisfying these criteria is on the spouse seeking to enforce the agreement.

If you are considering having a postnuptial agreement drafted, please call Patricia S. Fernandez & Associates. Our legal team is dedicated to helping you choose the strategy that is right for you.

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Postnuptial Agreements

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