Postnuptial Agreements and U.S. Divorce Law

A person need only watch one or another of the myriad of television programs with plotlines centering on wealthy families to encounter a reference to prenuptial agreements. Indeed, a notable percentage of people in the United States enter into these types of contracts. While a broad spectrum of the population has a basic understanding of a prenuptial agreement, the same cannot be said about a postnuptial agreement. There are some basic points that illustrate the objective, nature and enforceability of a postnuptial agreement, or postnup, in the United States.

A postnuptial agreement is defined as a contract executed between a husband and wife after they are married. A postnup is intended to settle the financial affairs of a married couple if they end up getting divorced. This objective makes a postnuptial agreement similar to the better known and more widely utilized prenuptial agreement, or prenup.

A crucial point must be borne in mind regarding postnuptial agreement. Each state in the country has its own set of laws regarding the availability and enforceability of a postnup.

Postnuptial agreements are of relatively recent origin in the United States. These types of contracts did not start to come into being in the country until the latter part of the 20th century.

From a legal standpoint, postnuptial agreements were deemed legal impossibilities until that juncture in time. A legal doctrine known as "marital unity" rendered it legally impossible for a husband and wife to enter into a binding contract with one another. Broadly speaking, this no-longer-used legal concept dictated that a husband and wife became "one entity" upon marriage. A person cannot enter into a contract with his or her self.

Even after courts across the country did away with the concept of marital unity, postnuptial agreements were not deemed legal across much of the country. As a matter of public policy, nearly all states initially concluded that a postnup would "encourage divorce."

As the concept of no-fault divorce took root in the United States, postnuptial agreements became more widely available. With the rise of no-fault divorce, marital wrongdoing no longer needed to be alleged in order to seek a termination of a marriage.

As noted previously, each state has its own set of laws addressing the availability and enforceability of postnups. There are five essential elements that render a postnuptial agreement a legally enforceable contract:

• A postnuptial agreement must be in writing. A so-called oral postnuptial agreement is never enforceable.
• A postnup must be executed voluntarily by both parties. A spouse cannot be pressured, coerced, or threatened in any manner to enter into a postnuptial agreement.
• In order for a postnuptial agreement to be legally binding, each spouse must make a full and fair disclosure of their assets and obligations in advance of the signing of the document. If anything is not disclosed, the agreement is considered void.
• A postnuptial agreement must be conscionable. A postnup cannot be crafted in such a manner that it takes unfair advantage of a spouse.
• Both spouses must sign the agreement. Bear in mind that one area in which states have different legal requirements regarding a postnuptial agreement can be found in the way such a contract is signed. The specific signing requirements of a state must be satisfied or the contract is not enforceable.

As a concluding consideration, each postnuptial agreement has its own peculiarities, as permitted by a state's laws. With that said, the typical postnup is designed to achieve one of another of three objectives.

First, a postnuptial agreement may be drafted to establish the division of marital assets in the event a marriage ends. Second, a postnup may be designed in a manner that a spouse waives any interest in certain assets in the event of a divorce. Finally, a postnuptial agreement may provide what fairly can be described as a basic outline for a separation agreement in the event that a marriage comes to an end.

These agreements should be drafted by a seasoned, skilled attorney with a background in creating postnuptial agreements. Each spouse is wise to have his or her own counsel review a draft agreement before signing, some states requiring this step. If you have any questions concerning a postnuptial agreement, contact the Law Offices of Peter Van Aulen at 201-845-7400 for a free initial consultation.