Engaged couples can sign a prenuptial agreement that can protect their right if they ever divorce. But spouses who never entered a prenup can also prepare for a divorce, especially a high-asset divorce, by entering a postnuptial agreement.
What post-nups do
Postnuptial agreements are relatively recent, but their use has grown. It can remain in effect for the length of the marriage or have an expiration date. Older couples may enter these agreements when they believe their prenuptial agreement is outdated or their financial or business situation changed greatly since they were engaged or first married.
A 2015 survey by the American Academy of Matrimonial Lawyers showed that 90 percent of lawyers said that property division was the most common issued governed by these agreements, 73 percent of surveyed attorneys answered that spousal support and maintenance was the most typical and 45 percent said that retirement accounts were the most addressed.
Like a pre-nup, a postnuptial agreement covers these divorce issues. However, a post-nup is signed after, even years after, the marriage. A postnuptial agreement may not govern child custody and child support matters which are addressed by the courts.
A prenuptial agreement may be used to protect a spouse’s inheritance. This may be important in a state such as California where an inheritance becomes community property if it is commingled with the couple’s property.
It may also provide assets or funds to a stay-at-home spouse. A post-nuptial agreement can assign business interests or ownership to a spouse and provide a method for valuation of the business.
These contracts have also governed the repayment of gifts from parents. For example, the spouses may agree to reimburse parents for the funds they provided for a house payment.
If spouses have a duty to manage each other’s assets, these agreements must have been negotiated and entered with the highest good faith and fair dealings. Parties must be fully transparent with their financial information. There cannot be any coercion.
Each spouse should also have their own attorney to assure their rights are protected and there are no conflict of interests. Attorneys may also help prepare an agreement that will be enforceable and meet a spouse’s interests.