Making Sense Of Post-Nuptial Agreements

In the U.S., we’re familiar with prenuptial agreements … at least, we’ve heard about them often enough. We speculate over what celebrities have addressed in their pre-nups and sometimes we sign them ourselves. Even millennials are jumping on the pre-nup bandwagon.

But what happens if you skipped the premarital agreement and later decide that having one might be in your best interest? Do you have any legal recourse at that point?

Though the option is rarely discussed in public, couples who neglect to have a premarital agreement drawn up before their vows yet have the option to draw up a post-marital agreement. Post-marital agreements are typically more restricted in terms of content; some states don’t even allow them, but they are permitted in Indiana.

Despite the restrictions, a smart post-marital agreement can provide substantial protections.

Why Do You Want a Post-Nup?

Proposing a prenuptial agreement can be a tense proposition, but it’s nothing compared to raising the possibility of a post-marital agreement. What’s the difference? Prenuptial agreements develop in the context of two separate individuals coming together, while post-nuptial agreements too easily feel like a fracture in a whole body.

You’ve already come together, so many couples feel as though a post-marital agreement is a signal that things may be falling apart. There’s some truth to that emotional response: Some couples indeed choose to sign post-marital agreements after infidelity or some other breach of trust.

When the situation gets tense, people instinctively want to protect their assets. This can make the process of drawing up a post-nuptial agreement a highly combative activity, rather than primarily an act of forethought and consideration.

Certain couples do in fact sign a post-nuptial agreement with entirely cool heads. Like a premarital agreement, this document can set crucial legal boundaries for your marriage.

The one sticking point is that some courts do not enforce them as firmly as premarital agreements.

The Problem of Novelty

Pre-nuptial agreements have a longstanding tradition. People from wealthy families, in particular, have employed them for decades to protect their assets.

This is important because courts have ample precedents to rely on as they determine what’s permissible. Post-marital agreements, however, still tend to move in grey areas that leave a lot up to the court’s discretion if they ever have to take effect.

Thus, it’s critical that you work with an experienced lawyer who has a sense of what a court in your region is likely to enforce (and not enforce) according to a post-nuptial agreement. In addition, you and your spouse should retain separate lawyers so there will be no conflict of interest.

Particularly if one party controls most of the assets in the relationship, inordinate pressure may be exerted on the other individual to make unnecessary concessions. A good lawyer will help you feel comfortable with the terms of the post-marital agreement, instead of feeling you’re giving in when you sign it.

When Post-Marital Agreements Go Wrong

If post-marital agreements are so often precariously positioned, why sign one? Too often, lawyers draw up a post-marital agreement only to see the couple back in the office within a few years, seeking a divorce.

In other words, people regularly sign post-marital agreements in an attempt to make the marriage work when it’s already on thin ice. It can also be a way to reconcile a marriage after a breach of trust or another estrangement. If the document is already a fragile construction, a collapsing marriage only makes it more delicate.

Another common problem with post-marital agreements is that they’re often stressful to hash out, yet the terms are unlikely to be enforced precisely the way they’re described. Rather, in acknowledgment of the likelihood you’ll end up back before the judge to determine which terms apply and take precedence, we recommend you don’t become overly invested in the terms of your agreement.

If you spend weeks or months arguing about the terms of your post-nup, you’ll likely see it overturned due to not “being of one mind” in its development.

Among the more traditional reasons couples might pursue a post-nup is because of a change of financial status: for example, if they change professions. Income-related stipulations are quite common, but they also need to be fair.

In a prenuptial agreement, fairness only applies to asset distribution at the time of writing, but for post-nuptial agreements, judges can apply the standards of fairness more loosely. It’s much easier to apply what’s called the “unconscionability standard” to post-nuptial agreements than to prenuptials.

Similarly, the risk of coercion in post-nuptials makes it more likely that all terms may be voided.

The Final Ruling

Given all of the above considerations and risks, why should you even bother with a post-nuptial agreement? If you have the option, go with a pre-marital agreement instead; post-nuptial agreements shouldn’t be viewed as that secret, back-pocket threat if things go awry.

If you want something in writing, do it from the start.

Of course, if you’ve completely overlooked the opportunity for a pre-marital agreement, a post-nup isn’t out of the question. You should still approach it as if it were a pre-nup, though: as a set of expectations and conversations before something goes wrong, not after.

Couples that approach post-nuptial agreements as though they’re glue to repair a cracked marriage are typically the ones that end up in court trying to defend the terms of their agreement when they’re headed for divorce. One will confess that he or she only signed the agreement because of a need for the financial support or help with the kids, because the person didn’t own the house or desperately wanted to stay in the marriage.

Regardless of the reason, couples that are already at the end of their rope tend to draft post-nups that don’t hold up in court. If you’re considering a post-nuptial agreement for your marriage, contact Rowdy G. Williams Law Firm today to discuss your options.

Together, we’ll explore what you hope to achieve with the agreement, and whether your desires for your relationship can be written in a way that holds up to the strictest legal standards. While post-nuptial agreements enjoy considerable flexibility compared to other legal documents, they lack the broad recognition enjoyed by other contractual agreements.

We can try to make it binding, but the novelty of the post-nuptial form leaves much of it still open to interpretation.