While most people are aware of pre-nuptial agreements and how they function, post-nuptial agreements are less well-known. Much like pre-nups, post-nups offer rules for the division of marital assets and property should a union end in divorce. Post-nups can also be harder to enforce in court since they’re created after the marriage has already taken place. The Spruce explains the criteria used to determine whether a post-nuptial agreement is considered valid.
For many years it was not permissible for a married couple to have a binding contract between themselves. While that’s no longer the case, couples creating post-nups must take every precaution to ensure they’re legally binding or they could be thrown out in court. For example, all shared marital assets must be fully disclosed within the document. If there is an attempt to hide assets the contract may not have any influence during divorce proceedings.
Next, both parties must enter into the post-nuptial agreement willingly. One party can’t coerce or otherwise force the other spouse to agree to terms when they’re not willing to. When this occurs, the other party is considered to have signed the agreement under duress, which renders the contract null and void. In the same token, the agreement must be considered fair for both parties.
Establishing a fair division of assets is more challenging than it sounds, especially if when people have been married for some time and there are questions about which assets are shared and which are separate. To ensure post-nups are enforceable, both spouses are urged to seek assistance from an attorney with experience in family law. An attorney can also help you understand state-specific laws for post-nups, which vary quite a bit from place to place.