A postnuptial agreement is a form of protection that married couples can use against complications that can arise in a future divorce. It differs from a prenuptial agreement in that it happens after marriage, but it also differs in the perspective that both parties may now have and desires to create one.
With a prenup, your perspectives can differ due to not having the marriage behind you, and “real life” not set in quite yet, in most cases. With a postnup, you have had real-life experience behind you and may have a much more precise idea of what you wish to protect yourself from.
Why Choose to Get a Prenuptial Agreement?
Several appealing reasons occur that may incentivize either party to create a postnup. Before the marriage, the rush to plan for the big day or emotions surrounding the creation of a prenup may be present, so it was overlooked. With a postnup, you can still protect yourselves from future concerns.
If there is infidelity involved in the marriage, this may also prompt one of the parties to want a postnup in place. This can provide peace of mind should the cheating happen again, or even if it doesn’t, that they have a clear plan for the division of assets and other essential divorce topics.
Suppose one of the parties decides to open a business after getting married. A postnup can make a lot of sense in this situation because it allows both parties to have a clear strategy for how the income or assets associated with the business that didn’t exist before marriage will be dispersed.
Other Reasons for a Prenup
Another common reason to get a prenup is that one of the parties in the marriage has drastically changed their income. Maybe one of the parties has chosen to stop working or has chosen a far less demanding career that yields a significant decrease in income. The other party may want to set up some protection of their assets or income should the couple decide to divorce in the future.
One of the parties may have developed unhealthy habits with money over the years. Suppose one or the other has racked up significant credit card debt, started gambling dangerously, and it’s affecting the household income.
On the contrary, one spouse may have won the lottery, increased their income substantially, or received an inheritance. They can put plans on paper through a postnup to protect those assets from their divorced spouse.
If there are children from a previous relationship that you want to include in planning, a postnup can outline how the assets are to be dispersed and can act as an avenue of estate planning.
What are Some Cons of a Postnup?
In some cases, the urgency by one party or the other to create a postnup agreement can create issues within the couple. It may bring up emotions that the other party is having doubts or other reasons to plan for divorce. They may feel blindsided by this decision if there are no previous conversations regarding post-nup concerns.
Along those same lines, some couples can experience a premature marriage breakdown if there isn’t agreement on some of the topics in a postnup. In some cases, the desire for a postnup can create more instability in the marriage than choosing to forego the option.
In the eyes of the courts, there is more room for coercion in signing a postnup than in a prenup; therefore, they can be less enforceable. Judges will be concerned with whether one of the parties is holding financial concerns or stability over the other’s head to get them to sign a postnup.
What are Common Topics Covered in a Postnuptial Agreement?
Postnuptial agreements can cover everything from dividing yard work responsibilities to where the family will spend the holidays. We will discuss some of the most common topics below.
Property ownership is a common topic that is covered in a postnuptial agreement. This includes property that was obtained jointly after the couple was married. In most cases, Washington state doesn’t include property owned previously by one of the parties as joint property.
Outstanding debts are typically outlined in a postnup. Specifically who will be responsible for them or to what percentage each party will be held responsible should divorce occur.
Retirement plan benefits are also expected, including how they are dispersed or protected after a divorce.
Children, either from the current marriage or those from previous relationships, and how assets are dispersed to them in the event of a divorce. However, child support that leaves one of the parties financially unstable or is seen as not in the children’s best interest can make the contract unenforceable in some situations. Including child custody can also affect the enforceability of the postnup. It is generally best practice to leave out child custody specifics in a postnup in the state of Washington.
How Can a Lawyer Help?
The last thing any of us want to do is choose to bring up the option of a postnup with our partners that could potentially cause harm to the marriage, only to find out that the process itself was unenforceable. By working with an experienced lawyer, you can ensure that you have followed the proper steps to create a legally enforceable postnuptial agreement from which all parties can benefit.
Our office of family law lawyers has worked with several families to help them determine how to protect themselves through a postnuptial agreement. Call our office today at (360) 926-9112 to confidentially discuss your options and learn how we can best assist you.