Most people have heard of prenuptial agreements. In a prenup, two people who are going to get married enter into a contract that spells out how assets will be divided if they divorce or die and addresses some other issues that may pop up during the marriage. If you are already married, a prenup isn’t an option for you, but you do have another choice you may not know about: the post-nuptial agreement.
Post-nuptial agreements: a quick background
Prenups are more well-known than their post-marriage counterparts because the post-nuptial agreement used to be impossible under the laws of the US. Previously, the law held married couples as one entity when it came to contract law, so two spouses became one person. You can’t enter into a contract with yourself, so post-nuptial agreements just weren’t possible.
As divorces became more common in the country and the no-fault divorce become an option in many states, the post-nuptial agreement became more popular. This agreement can cover many subjects, including asset division upon divorce and smaller issues, such as when and where the couple will take a vacation and how much each spouse can spend on personal expenses.
When a post-nuptial may be the right fit
When a post-nuptial may be the right fitA post-nuptial agreement is not always the first step before a divorce, although it can be for some couples. Many couples argue over finances. In fact, the Institute for Divorce Analysis pins money as one of the top three divorce causes (https://www.institutedfa.com/Leading-Causes-Divorce/). This is why having an agreement that dictates how finances will be handled can eliminate debates over that topic and decrease stress in the marriage.
If the spending habits of your spouse have changed and you are getting concerned, a post-nuptial agreement just may help protect your assets and protect your future as a couple. If you believe divorce is possibly on the horizon, this type of agreement can also help when it comes time to start the official process because it acts as a baseline. In addition, a post-nuptial agreement can ensure how you and your spouse want things to go in the event one of you dies, particularly if you both want things to go in a way that is different from how they would go under state inheritance laws.
What a post-nuptial agreement can’t do
In New Mexico, your post-nuptial agreement can’t settle spousal support, spell out child custody or cover child support. These agreements also can’t encourage you to get a divorce, be very one-sided or excessively unfair, or require you or your spouse to do something unethical or illegal. If the court finds that your post-nuptial agreement violates these particular rules, the judge can – and probably will – invalidate it. This agreement has to be properly drafted and executed, too. Generally, the post-nuptial agreement must be signed and acknowledged by both parties, with the signatures notarized properly.
What these agreements can do is settle both property and debt division and dictate how retirement benefits and accounts will be handled. If matters or circumstances change over time, you and your spouse can amend the post-nuptial agreement to add new terms, remove current ones, or alter existing terms or conditions. Note that these agreements are not legal in all states, so if you move outside of New Mexico, your agreement may not be enforceable in your new state.
Many rights are impacted in a post-nuptial agreement, so each spouse should retain his or her own family law attorney. One attorney should not represent both spouses because that creates a conflict of interest. Proper individual representation will help stop each party from being taken advantage of. In addition, courts often don’t look favorably on a post-nuptial agreement that was created with only one spouse having legal representation, which could make the agreement unable to be enforced.
Contact Kuffer Law If you need help with a prenuptial agreement or if you have have additional questions.