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Prenuptial agreements are well-known to many people entering into a marriage with someone they love. It’s controversial for many because some agree that it does nothing but provide bad luck going into a marriage. A prenuptial agreement is one that’s designed to protect the personal, financial, and business assets of one partner from the other if their marriage should end. It’s most common for couples to sign a prenup when one has significant personal or family wealth to protect, if one is a business owner by him or herself, or if one has a business in which there are partners, a board, and others who want to have the business interests protected.
There are those who know that going into a marriage is also a form of business contract and have no problem signing prenup, and there are those who refuse to sign one under the pretense that their partner is already going into their marriage assuming it will not last. For some, it’s nothing more than a business contract that requires a signature and for others, it is nothing more than a personal insult when their partner asks them to sign.
However, what about a postnuptial agreement? It works like a prenup in terms of signing away the rights to certain things if the marriage should fail, but the signature is derived following the marriage being made legal. What is a postnuptial agreement, do you need an attorney to draft a postnup, and how does it work?
What is a postnuptial agreement?
A postnuptial agreement is very similar to a prenuptial agreement save for the small fact it’s signed after the marriage is made legal. It’s often considered when one spouse is given a reason to think the other might be a problem if the marriage ends. For example, if one spouse becomes an addict, shows uncontrollable money management skills, or does something that causes the other to worry about their financial or business interests.
A postnuptial agreement is different in the eyes of the law in every state, and it might not hold nearly as much legal power as a prenup in many courtrooms. However, it’s still a valid legal document that can be used to help you win your case if you decide to divorce your spouse. It’s also a powerful legal document if one of you passes away and leaves the other with ample debt, assets, or a business to run.
A postnuptial agreement is recognized in New York in many instances, but it must be notarized to show that both parties were legally and physically capable of making the decision to sign the agreement. Oral postnuptial agreements are not valid in New York. Stating in front of a judge that your spouse told you one Friday night you could have the kids and the family business if you ever divorced is not a postnuptial agreement.
The agreement cannot be considered legal if it’s not in written form, if it’s not signed, if one party felt threatened or forced to sign it, if one party felt tricked into signing it, if it’s not fair, and it doesn’t include full disclosure.
Legally Handling Postnuptial Agreements
An attorney can help you fight a postnuptial agreement if you feel you want more than you’re being awarded in court, and an attorney can help you draft a postnuptial agreement if you want one. If you have an attorney draft this agreement, it holds more legal ground in court. It’s helpful if both of you hire an attorney of your own and ask for the paperwork to include what you both consider fair, sign it in the presence of your attorneys, and handle the entire situation like a business transaction.
If you ever decide to divorce and one of you decides to go back on your word and ask for more or less from the agreement, your attorneys can state in a court of law you were both of sound mind and body and that you both agreed to this legal document at the time of signing. It holds more weight in a court of law than a postnuptial agreement you signed in your kitchen on the back of a piece of homework your kids brought home.
If one of you decides to fight a postnup, an attorney is necessary to handle the legalities of this situation. Unlike a prenuptial agreement, which is very hard to fight, a postnuptial agreement is not as legally binding in many instances. An attorney is required to help you find the loopholes, the laws, and the areas where you can argue your own case and fight the signature you provided when you decided to sign this paperwork.
The Legalities of a Postnuptial Agreement
Most courts are happy to have something legally signed by both parties agreeing to certain terms and conditions in the event of a divorce, but it’s always more efficient to have this paperwork legally drawn up and handled. Unprofessional postnuptial agreements might not stand up in a court of law if an attorney fights it for his or her client. Call an attorney to help you draft your postnuptial agreement. You might both agree to the terms now in the midst of your happy marriage, but many things change when a marriage begins to fall apart and couples begin to think less of one another.