Postnuptial Agreements Explained
Postnuptial agreements help a couple after they marry to deal with one of three issues: (1) how will they resolve questions of division of property or spousal support in the event they ever separate, functionally separate, or divorce; (2) individual issues, like how to handle debt, where to live, and how to raise children, in the event they ever separate; or (3) to enforce agreements that they fear the other might go back on made individually after the marriage began (like husband will work while wife stays home with child).
A key feature of both postnuptial and prenuptial agreements is that they waive rights that one or both spouses may have under default marital property laws. The default marital property laws are those presumes agreements are not made at marriage or during marriage (in this case, a postnuptial agreement). They vary from state to state and depend on whether the parties plan to ever get divorced, live separately, or just remain married forever.
All prenuptial agreements are "premarital" agreements entered into before the marriage. Once the marriage starts, the agreement is then called a "postnuptial" (or marital) agreement.
In the United States, prenuptial agreements were initially disfavored by courts. Judges and legislators feared that couples who entered into them had a higher likelihood of divorcing. Over time , those fears proved unfounded. Some newer studies suggest that having a prenuptial agreement may actually reduce the likelihood of divorce.
Almost all states now allow both prenuptial and marital agreements. It is up to individual state law as to what kinds of conditions can be placed on the agreements, and there may be variations in different areas within the state.
It is important to understand that postnuptial agreements are only enforced if they meet state contract law requirements. Courts generally do not enforce the agreement if: (1) it subclasses due process requirements (like unfair surprise); (2) the spouse did not sign voluntarily, (when signing while pregnant or breastfeeding is seen as coercive); (3) the spouse did not fully divulge information about family assets before signing; (4) there was no independent legal representation with adequate time to review the agreement before signing; or (5) the agreement is unconscionable, unfairly overreaching, or inequitable to the other spouse (with the exception of a valid waiver of spousal support).
One reason a postnuptial agreement is entered into includes to "prove" the legitimacy of the couple’s relationship, wealth, and intentions to third parties like banks, creditors, and business partners. It may also be a useful tool to force a spouse to confront certain deep-seated issues early on before resentment sets in. Lastly, both spouses may have much to lose if the marriage ends in divorce or may have family members who have strong opinions about pre- or postnuptial agreements.
The Advantages of Having a Local Postnuptial Agreement Lawyer
When seeking a skilled postnuptial agreement lawyer, many people tend to search for professionals in their areas. Despite the fact that there are plenty of highly skilled attorneys around the nation, hiring an experienced Houston postnuptial agreement lawyer is the best way to ensure that your agreement is crafted according to the laws of your state. From the beginning, it is important to know that the marriage dissolution laws of every state are different. Most of the provisions of postnuptial agreements are enforceable only if they meet the requirements of the law of the jurisdiction in which enforcement is sought. Different jurisdictions peer at postnuptial agreements in varying ways, with some states vulnerable to challenges by public policy standards, while other states uphold them more frequently. Because The Law Office of Bryan Fagan offers services across California, Texas and Alabama, a Houston postnuptial agreement lawyer would be able to provide you with guidance on the laws, and changes within those laws, in the state that you reside. To start, when you hire a local Houston postnuptial agreement lawyer, you can expect them to spend time getting to know your particular situation and offer you relevant advice on how you can meet your goals with a postnuptial agreement. You’ll also be working with a professional who has experience drafting and executing such documents in your jurisdiction and knows better than someone out-of-state what is necessary to ensure your agreement will be upheld if it is ever challenged by a court of law. Further, it is easier to get questions answered when you have a personal relationship with your postnuptial agreement lawyer. For example, when you pick up the phone to contact your local attorney, you will likely reach someone you know who has a better understanding of your needs as a client due to the previous time you have spent together. Whereas in some cases, people call out-of-state postnuptial agreement lawyers and are forwarded to assistants who read scripted answers from a screen, a local attorney will often address your concerns immediately.
Tips on Finding a Local Postnuptial Agreement Lawyer
When it comes to finding the best postnuptial agreement lawyer near you, there are several factors to consider. First and foremost, experience is key. You want a lawyer who has a proven track record of helping clients navigate the complexities of postnuptial agreements. An experienced attorney will be better equipped to understand the nuances of your specific situation and provide you with tailored legal advice.
Client reviews and testimonials are another important factor to consider when choosing a postnuptial agreement lawyer. Take the time to read through client reviews and ask for referrals from friends, family, or other attorneys in the field. This will give you a better understanding of the lawyer’s strengths and weaknesses and help you make an informed decision.
It is also important to choose a lawyer who specializes in family law. A lawyer who focuses solely on family law will be more familiar with the laws and regulations surrounding postnuptial agreements and able to provide you with the best legal options and guidance.
The right lawyer for you will also have excellent communication and interpersonal skills. You need a lawyer who will take the time to listen to your needs and concerns and keep you informed throughout the process. A good lawyer will also be responsive to your calls and emails and clear in their explanations of legal concepts and procedures.
Finally, it is important to consider the lawyer’s fees and billing practices. Make sure you understand how the lawyer charges for their services and whether they offer payment plans or financing options.
By considering these factors, you can find the best postnuptial agreement lawyer near you.
Questions You Need to Ask a Postnuptial Agreement Lawyer
Finding the right postnuptial agreement lawyer often takes some work and effort up front before you are comfortable with your final decision. It is important to make sure that your desires and expectations are met by the postnuptial agreement lawyer you hire for your representation. Putting forth the effort to choose the right lawyer initially could save the waste of time and legal costs incurred if the premature consultation with the wrong lawyer leads to a full engagement with the wrong lawyer.
Questions to ask your postnuptial agreement lawyer:
How long have you been handling postnuptial agreement matters?
Are you familiar with all of the specific regulations and laws in my location that would apply to my case?
What are your fees?
Can you give me references from past clients that I can contact?
Will my case be handled by someone in the office or will it be reassigned to someone else?
Do you charge for an initial consultation?
Will I be charged if you need to appear in court on my behalf?
Are there any other additional fees I will need to pay for this service?
When are payments due?
How are files stored and maintained?
Will my personal and confidential information be kept private?
How long will it take to process my request?
What do I do if I have questions while my case is pending?
My ex-spouse owes me thousands of dollars in unpaid support and alimony , will you be able to help me get that money?
I cannot afford the retainer that your law office requires of clients, are there any options for me?
What is your strategy for getting the best possible outcome for my case?
Will someone regularly provide me with updates on my case progress?
The Steps Involved in Preparing a Postnuptial Agreement
The process of drafting a postnuptial agreement begins with an initial consultation between the attorney and the client. During the first meeting, the attorney will learn about the client’s background and the issues that have prompted the client to seek a postnuptial agreement. During the second meeting, the needs of each spouse will be discussed and the attorney will propose general guidelines for a suitable agreement. The process of drafting the postnuptial agreement itself begins with the attorney having a conversation with the client about the types of assets, income and debts that each party possesses.
The next step of the process is that the client will be working with the attorney on a collection of data concerning income, assets, debts and other information that may be used in a postnuptial agreement. When the attorney has sufficient information to draft an outline of the postnuptial agreement, he will then send a proposed draft to the client for their review. Once the client has considered the outline of the postnuptial agreement, they will be able to either revise the agreement or state which portions they would like to accept.
Once the outline of the proposed postnuptial agreement is ready, the next step of the process is coming to an agreement with the client on specific terms. The attorney should be diligent in encouraging the client to consider whether they should keep their separate income or property, or whether there are some pieces of property they would like to share. The attorney is then required to represent his or her client’s best interests and make recommendations. The client is then required to weigh the pros and cons of the proposed agreement and determine whether to sign the postnuptial agreement or not.
In order to negotiate the final agreement, the attorney will discuss the results of the first two meetings with the client. Once the attorney has gotten input from the client, they should be able to begin drafting the final agreement. After the postnuptial agreement is signed, it becomes legally enforceable.
Myths and Truths Behind Postnuptial Agreements
Unfortunately, misconceptions about postnuptial agreements abound, and without access to correct information, many married couples opt out of this agreement entirely. Here are some of those myths:
Myth 1: Postnuptial agreements are only for wealthy families.
Truth: While those with large estates may benefit from a postnuptial agreement that sets out an inheritance plan and addresses income earned during the marriage, the benefits of a postnuptial agreement are not limited to those situations. Even lower and middle class families can find particular provisions in postnuptial agreements useful to spell out what will happen to assets and income in the event of a divorce.
Myth 2: You must be on the verge of divorce to enter into a postnuptial agreement .
Truth: We encounter many clients who believe that a postnuptial agreement would "jinx" their marriages. In actuality, postnuptial agreements are quite the reverse: They frequently bring stability to otherwise uncertain financial times. In the appropriate circumstances, a well-negotiated agreement can solve short-term financial issues and set up a legal framework so that spouses avoid future fights over money or property.
Myth 3: Postnuptial agreements are solely for protecting assets from being divided in a divorce.
Truth: Often, people think of postnuptial agreements in the context of protecting one spouse’s assets from division in the event of a divorce, particularly in high-asset households. While that is indeed one possible use, there are a range of other uses for these agreements that may serve spouses very well in the event of a divorce.