What is a Postnuptial Agreement and When Would I Want it?

On behalf of The Marks Law Firm, L.L.C. posted in Postnuptial Agreements on Friday November 1, 2013

In our previous post we discussed the pros and cons of a prenuptial agreement.  As the name implies, prenuptial agreements are made in anticipation of marriage.  But what if some circumstance arises after marriage and the parties would like to address it?  In that case, they can choose a postnuptial agreement.

Many of the same circumstances that give rise to a prenuptial agreement also give rise to a postnuptial agreement, the only difference having to do with timing.  For example, one spouse may come into money (inheritance, lottery, gift) either unknown or unaddressed at the time of the prenuptial agreement and the parties may wish to address how that property will be classified (separate or marital) or how it would be divided in the event of divorce.  This type of clarity could be very important because of the financial planning associated with investing a large sum of money or placing it into one or more trusts to benefit one or more persons who are not the other spouse.

Parties may also want a postnuptial agreement because they failed to draft a prenuptial agreement and, after a period of marriage, feel that circumstances now require a document that clearly sets apart separate property, how to divide marital property and whether either spouse will receive maintenance and, if so, in what amount.

Tax consequences can also influence a postnuptial agreement.  For example, one spouse may choose to purchase an annuity and place it in a certain type of trust that will pass to the other spouse as maintenance in the event of divorce and do so with limited tax liability.

Another common reason for a postnuptial agreement centers on the most common change in circumstance after marriage — a trial separation or some other event that makes one party feel as if divorce could be in the cards.  In this situation, the postnuptial agreement looks more like a separation agreement and allows the parties to reduce anxiety about finances and assets with the hope that the triggering event might reach a resolution short of divorce.

Regardless of the motivation for a postnuptial agreement, the same statutory requirements to enforce a prenuptial agreement apply to a postnuptial agreement — full disclosure of assets, consultation by each party with separate counsel, and an absence of unconscionability.

If you have questions about a postnuptial agreement, contact our St. Louis family law attorneys — we can help.