Engaged couples can negotiate postnuptial agreements to help protect their assets and address property division and support if the couple ever divorces. Couples, however, can also enter a post-nuptial agreement after they marry that covers many of these matters.
These issues, however, may be more significant for couples entering post-nup for the simple fact that the couple is now married. Spouses now owe specific obligations to each other and assume more responsibilities in their relationship.
Like a pre-nup, there must be full financial disclosure among the parties. Otherwise, a court may find that that agreement is invalid or unenforceable.
Post-nuptial agreements must also be equitable and reasonable when they are executed. However, these should also be fair at the time they are enforced and carried out.
A substantial change in the couple's circumstances may impact its enforcement. Accordingly, any foreseeable changes should be identified in the agreement to show that the couple considered these circumstances while reaching an agreement that they still want enforced.
In addition to property division and allocation of debt, a post-nuptial agreement may address the receipt of gift and inheritances. For example, a relative may want to give gifts through divesting 529 plans to their family members while keeping them from their spouses in a divorce. This often occurs with family members who are making financial preparations for long-term care.
A post-nuptial agreement may designate these gifts as separate property for one of the spouses if there is ever a divorce. During marriage, however, the gift may be used for the spouse's entire family. Additionally, in return for this concession, the gift can be used to help relieve the other spouse from a financial obligation such as paying for college tuition or health care for the children.
Each spouse should have their own attorney assist them with negotiating and preparing these agreements to assure that there is no coercion and that the agreement is enforceable. Lawyers can help draft legal-valid documents that meet the couple's legal and financial needs.
Source: Boston Herald, "Post-nuptial agreement protects mom's gifts," By Wendy Hickey, April 29, 2018