What is a Postnuptial Agreement?
A postnuptial agreement is essentially a type of prenuptial agreement that is made between the spouses after their marriage, as opposed to before. It’s a contract that provides for any financial obligations you may need to attend to when separating or divorcing from your spouse. Essentially, it’s an agreement handling how assets and debts are divided. The possible scope and depth of a postnuptial agreement are extensive, and typically include the types of property ownership (separate versus community, for example), spousal support considerations, as well as any other legal issues that are relevant at the time of the agreement. One trend is for some couples to use a postnuptial agreement as a way of staying out of divorce court. One example is when a couple uses such an agreement as a way of sidestepping concerns over the California community estate laws, which can significantly limit the separate property that a spouse is able to keep. When property is involved , a postnuptial agreement becomes a complex document. Where property includes a business, for instance, the spouse who is not an owner will want security in the event of a divorce. While the divorce rate in America varies, there continues to be a significant number of couples who divorce with marriage after 10 years or less, which translates to nearly half of American couples. Given that reality, it makes sense to consider the value of a postnuptial agreement to protect assets in the event of a divorce. A postnuptial agreement can also be used to secure family inheritances and gifts. To be valid, most postnuptial agreements must be in writing and signed voluntarily by both parties. Unlike a prenuptial agreement, however, there is no official waiting period. Furthermore, while both parties do not have to simultaneously be represented by counsel, both need to acknowledge the undertaking in writing before a court.
The Effect of Infidelity in a Postnuptial Agreement
Infidelity frequently serves as a catalyst for the creation of a postnuptial agreement. For some couples, the first sign of disloyalty triggers a frank discussion about the need for a new contract to govern their financial affairs, as one spouse believes that the other should not be rewarded with full spousal privileges when he or she has already demonstrated an unwillingness to honor the marital vows regarding exclusivity.
Even if the cheating spouse convinces the wronged party that he or she has truly changed, both spouses may still agree to a postnuptial agreement that protects the interests of the non-dissipating spouse in the event of a subsequent affair. Unlike a prenuptial agreement, a postnuptial agreement can cover assets that have been acquired or transformed during the course of the marriage, since it can be drafted tens or even hundreds of years into the marriage. This ability can prove incredibly important if marital funds or property were used to support the extra-marital relationship. The aggrieved spouse may believe that all assets held by the cheating partner may be the product of funds that were misused to facilitate the affair. A postnuptial agreement can protect the aggrieved spouse from having to suffer the loss of all shared property merely because the cheating spouse has yet to distinguish between marital assets and non-marital property.
Legal Factors to Consider When Preparing
When drafting a postnuptial agreement that addresses infidelity, there are several legal considerations that must be taken into account. State laws vary significantly when it comes to the enforceability of such agreements and the specific provisions that can be included.
First and foremost, it is essential to understand the state laws that govern postnuptial agreements. While some states uphold their validity and enforce their terms, others do not. It is critical to work with a qualified attorney who is well-versed in the laws of your state and can guide you through the process accordingly.
In addition, enforceability issues may arise when it comes to the specific provisions included in the agreement. For example, in some states, courts may be reluctant to enforce a provision that limits spousal support or sets a minimum amount of alimony. Alternatively, some courts may disregard provisions that are deemed as punitive in nature, such as a clause that forfeits a spouse’s property rights in the event of infidelity.
Moreover, as with any contract, both parties must enter into a postnuptial agreement voluntarily and for consideration. If one spouse feels that they were pressured into signing the document or did not receive an even exchange in return for signing, this could serve as grounds to challenge its enforceability down the line.
Finally, it is essential to ensure that the postnuptial agreement adheres to public policy and does not violate any laws or legal principles in your state. For example, provisions pertaining to child support must be in the best interests of the child and may be subject to review by the court to ensure that they comply with applicable laws.
In short, while drafting a postnuptial agreement to address infidelity can help protect personal assets and prevent further heartbreak down the line, the legal implications surrounding such provisions should not be taken lightly. Careful consideration and sound legal counsel are essential to ensuring that the agreement is valid and enforceable should the need arise.
Negotiating a Postnuptial Agreement After Discovering Infidelity
One of the most crucial aspects of a postnuptial agreement is the ability to determine with your spouse how you will handle your shared assets and debts in the potential event of divorce. This is particularly important if one or both of you are the subject of infidelity. Generally, once a postnuptial agreement has become necessary due to the breakdown of the marital relationship, it can be very difficult to maintain the level of peace in order to negotiate reasonable terms with your spouse . A hurt spouse should be willing to see that there could be consequences to their actions; however, this should not cloud an otherwise rational discussions over how to divide the property in the event of a divorce. When negotiating terms, keep in mind the following potential topics of discussion: Above all else, it is important to remember that your postnuptial agreement should be fair and reasonable to both parties. Ensuring that neither party receives an unfair share of the assets or liabilities may be necessary, especially where there has been infidelity by one spouse.
Pros and Cons
The benefits of a postnuptial agreement following an infidelity event can be quite compelling. First and foremost, it can ward off divorce in certain scenarios by reestablishing expectations, routines, norms and responsibilities that a couple is committed to. The first 6 months after infidelity is often rife with negotiating new terms of the relationship and establishing boundaries of acceptable behavior. Addressing some of those issues up front can help a couple avoid the pain of revisiting new terms under the emotional turmoil of broken trust.
A postnuptial agreement can also help protect the individual effort of both partners to rebuild a broken relationship. Typically, we identify with and define ourselves as "married" and therefore expect the contributions of a spouse to be reciprocally valued by their partner. A postnuptial agreement can help redefine expectations of what constitutes a "successful" marriage for the future if both partners adhere to the newly negotiated terms. In essence, it can help both partners preserve their individual and collective assets, including intangible ones. Just as rebuilding a relationship requires a different kind of effort than when a relationship is "good," a couple that has been through an infidelity event may find it critical to establish a more individualized strategy of accountabilitÂy that can support their personal efforts.
Even with its potential benefits a postnuptial agreement comes with some drawbacks. The most important of these is that an agreement may have the consequence of relieving the offending partner of the social criticism of abandoning their spouse after infidelity. Imagine your wife left you after you cheated on her. A common social censure of her action is that she was weak or unstable or insecure enough to give up on a long-term relationship rather than dig in her heels and work hard to make it work. The clamor of such criticism cannot be overemphasized. In an attempt to stave off this censure, a wife might enter into a postnuptial agreement with her cheating husband to stay in the relationship and try to save it. While nothing can truly protect her from the pain of betrayal and abandonment by her husband, the agreement may provide a comfort level that she is making a well-informed and financially educated choice with all possible options still available to her. In fact, the Agreement’s representative value is that it encourages both partners to be relentless about asking the right questions and looking for real solutions. Thus, the partner that feels compelled to endure the pain may feel more empowered to negotiate the terms of the self-sacrifice. If the agreement is determined to be enforceable, the offending partner does not receive the negative social criticism because he is being held accountable to the institution of marriage, even if the self-sacrifice of the non-offending partner is more significant.
A final drawback concern may be that a postnuptial agreement can give a cheater the sense of an easy exit strategy without the fallout of a messy divorce. Legally and factually, a properly drafted postnuptial may allow the offending partner to proceed with a separation or divorce with fewer legal obligations than his partner would otherwise have. This means that a postnuptial agreement may hold little incentive for the offending partner to negotiate a long-term commitment. The individual that feels coerced into the marriage by a postnuptial agreement may feel trapped, even though he personally forced the marriage back together. If he succeeds in avoiding the divorce that he initiated, he may feel it as a success of the new strategy, but will it also further his sense of untrustworthiness? Again, the stability of the agreement is a functional element that must be considered.
Steps to a Solid Postnuptial Agreement
To ensure that a postnuptial agreement will be comprehensive and enforceable, there are certain steps that should always be followed. First, be advised on the laws in your area. It is crucial that both parties consult with separate and independent lawyers, as opposed to consulting with only one lawyer to draft the agreement. In doing so, you are helping to prevent any issue about the validity of the postnuptial agreement later down the line. If the parties do want to use one lawyer for the agreement, each spouse must sign a waiver acknowledging that he or she understands the potential risks involved. However, it is strongly suggested that spouses not proceed with one lawyer to draft the agreement, as this could create an issue later involving enforceability . When drafting the agreement itself, the language used should be clear as to which property is covered under the agreement. The agreement should also address how any property acquired during the marriage will be treated. A common concern is the treatment of income from either party’s separate property and whether that income would be sent to the shared marital estate or retained as separate property. As mentioned above, do not wait to draft a postnuptial agreement until divorce is on the horizon. If the agreement is commenced and completed while the parties are still content with each other, then the chances increase tremendously that a court will enforce it.