Postnuptial Agreements

A postnuptial agreement is a contract made during marriage.  Spouses who are legally married may enter into a postnuptial contract or settlement which, if certain conditions are met, is valid and enforceable in the event of a subsequent divorce or death.  Gislason & Hunter family law attorneys are experienced in negotiating and drafting these important documents.

What does a postnuptial agreement do?

A postnuptial agreement may address the same issues as a prenuptial agreement.  Some basic purposes behind the execution of these types of agreements are to protect particular assets from property division and to reduce uncertainty in disputes by providing a clear method for determining an appropriate division of property or appropriate spousal maintenance in the event of divorce.  A postnuptial agreement can also address how property should be distributed upon the death of one spouse.  A postnuptial agreement cannot determine child support, child custody, or parenting time rights. 

Do I need a postnuptial agreement?

Parties who may wish to consider a postnuptial agreement include those who have seen or expect to see a drastic increase in income or earning potential during the marriage, and those who have acquired or expect to acquire a significant amount of assets, through inheritance or otherwise.  Although marital discord is sometimes the instigating factor for a party to consider a postnuptial agreement, if legal separation or dissolution proceedings are initiated within two years of the execution of a postnuptial agreement, the party seeking enforcement of the agreement must prove that it is fair to the other party before it can be enforced.  Thus, it is wise to consider the execution of a postnuptial agreement to address increasing income or accumulating assets at the time of those events, and preferably before any significant marital problems.

Can I draft my own postnuptial agreement?

No.  A postnuptial agreement is only valid and enforceable if, at the time of its execution, each spouse is represented by separate legal counsel.  We recommend that you contact a family law or estate planning attorney at Gislason & Hunter LLP if you are interested in learning more about postnuptial agreements.