So, you got married without getting a prenup, and now you’re learning about the advantages of this form of document, much to your belated dismay. Wishing you had gone for the prenup after-all? If so, there is still an option that can accomplish many of the same things as a prenup: a postnuptial agreement.
A postnuptial, or postmarital, agreement is a legal document that is similar in nature to a prenup, except it’s designed for couples who are already married or in a civil union. Whereas a prenuptial agreement is entered into prior to a marriage, a postnuptial agreement can be enacted after the couple is legally committed. Much like a prenuptial agreement, a postnup can be used to decide how assets, money and even spousal support should be handled in the event of a divorce.
Interestingly, postnuptial agreements are a somewhat new development in U.S. law. Why, you may ask? Until the 1970s, postnuptial agreements weren’t typically enforceable, due to the belief that a married couple become a single unit once wed, and a single entity couldn’t enter into an agreement with itself. As more people began to get divorced in the 70’s and more states enacted “no fault” divorce statutes, postnuptial agreements became more widely enforced. That being said, they can still face complications regarding being enforceable, especially in comparison to prenuptial agreements.
So, What’s Included in a Postnuptial Agreement?
As stated, the types of provisions one can expect in a postnuptial agreement are similar to those in a prenuptial agreement. Provisions that are commonly included in prenuptial agreements include the following:
- How martial debts will be divided and handled, such as student loans, credit card debt, or mortgage loans
- How property and assets will be divided in the event of a divorce
- How spousal support should be handled, as well as how long the payments should last
- How assets will be handled should one spouse pass away
In regard to Oregon law, postnuptial agreements currently have a lack of statutory guidance, unlike prenuptial agreements, which are governed by specific statutory regulations. Due to this lack of statutory guidance and framework, it’s incredibly important that if you decide to draft a postnup, you practice caution and meet with an attorney. Doing so can help ensure you’re meeting all the necessary guidelines so that your postnup is just and proper in all circumstances, and thus will be more likely to be enforceable should a divorce occur.
As mentioned before, the enforceability of postnuptial agreements can often be tricky. This is due to the fact that some courts feel there is an unequal bargaining power between both parties once married, seeing as they now have established martial interest. For example, say one spouse clearly brought more money into the marriage and now wants to create a postnuptial agreement to protect his or her assets post wedding ceremony. If there’s conflict in agreement, the spouse now has more, and possibly unfair, bargaining power to convince their husband or wife to agree and sign the document—say, they threaten divorce. Because bargaining power is potentially offset, some courts will question the validity, and thus enforceability, of the document.
So How Do I Make Sure My Postnup is Valid?
If you and your spouse have decided that a postnuptial agreement is the right decision for you, you’ll want to make sure you go through the proper steps to ensure your postnup is valid and, most importantly, enforceable. The following are basic requirements to do so:
- In order for your postnup to be valid, both parties will need to sign the agreement voluntarily. If there are any indications that one spouse was coerced, threatened, or made to sign a postnup against their will, the agreement will be null.
- A verbal agreement won’t get you far in regard to a postnup. While you and your spouse may be on the same page now, they can easily change their mind in the midst of a divorce. For the reason, make sure you draft your postnup in writing.
- The postnup cannot be flagrantly unfair and biased to one spouse. If a prenup is drafted that is clearly unjust to a spouse, and could potentially leave them with little to no assets or wealth, the postnup will need to be further evaluated to determine if the spouse truly did enter into the agreement voluntarily and knowingly. If this remains in question, the postnup may not be enforceable.
- When drafting a postnuptial agreement, it’s important that each spouse give full and honest disclosure of all of their assets, incomes and any liabilities they bring to the table. If one spouse is dishonest in this regard, and a postnup is designed around false information that is either inaccurate or incomplete, the postnup won’t be considered valid.
If you’re already married but you and your spouse see the value in preliminary planning should a divorce occur, a postnuptial agreement may be a great option for you. It’s important to remember that a postnuptial agreement should not be regarded as a plan to one day get divorced—that is not true of these agreements. Rather, it’s ensuring that, should a divorce become a consideration, you and your spouse can feel confident that your assets and finances will be divided fairly, according to level-headed decisions that were made together as a team. They allow a couple to bring certainty to their future financial situations. If you have questions regarding postnuptial agreements, or are ready to begin drafting, call Pacific Cascade Family Law today at (503) 227-0200.