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What Is A Postnuptial Agreement, And What Can Make One Invalid?


More and more people are becoming aware of the concept of postnuptial agreements. While prenuptial agreements may be even more recognizable, postnuptial agreements are a valid tool and becoming a standard in many marriages across the U.S. Postnuptial agreements do, after all, function in a very similar fashion to prenuptial agreements. The main difference between the legal tools is simply, essentially, whether you were married before signing the documents.

Postnuptial agreements can be valuable tools that diffuse potential issues that could arise before they even come into play. However, you should be wary of certain terms or conditions, as they could invalidate your agreement. Read on to be sure you understand what issues could invalidate your postnuptial agreement.

What can a Postnuptial Agreement Contain?

A postnuptial agreement can contain terms and agreements between the couple pertaining to any number of things. The document is a contract that dictates certain mandates of the marriage – and can include such decisions as what religion any future children will be raised in, who would retain ownership of a specific asset should the marriage end in divorce, etc. The document can also dictate consequences to breaking any of the specified terms. For instance, the postnuptial agreement could stipulate that if a future child was not raised in the specified religion, and that decision led to or contributed to the decision to divorce, then the spouse who failed in the provision would forfeit ownership in a specific asset, or perhaps forfeit a percentage of spousal support.

You can include many valid provisions in your postnuptial agreement addressing property and assets. For example, as discussed above, you can include some detail about how property or debts would be dispersed if the marriage was ever dissolved. However, it is important to understand that certain requirements must be met for a postnuptial agreement to be considered valid, and some items cannot be validly included in a postnuptial agreement.

What Can Make a Postnuptial Agreement Invalid?

As mentioned above, certain requirements must be satisfied in order for a postnuptial agreement to be seen as valid by a court. These include:

  • The postnuptial agreement must be in writing (cannot be an oral agreement)
  • The agreement could not have been signed while the party was under coercion or duress
  • The signing spouses must have read the agreement
  • The signing spouses must have had time to think before signing the agreement

Other elements that will be seen as invalid by the court include:

  • The document attempts to settle items that cannot validly be agreed to in a postnuptial agreement (such as a child support agreement)
  • The document contains false or incomplete information
  • The postnuptial agreement is grossly unfair to one of the spouses

You should keep the above in mind as you move forward in crafting a postnuptial agreement. Remember that while certain things can invalidate the postnuptial agreement, those elements could be difficult to prove. For example; a postnuptial agreement could be deemed invalid if one of the spouses never read the agreement. But how does someone prove that to the court? Particularly when the document is signed. Partners should also be prepared/understand if any of the provisions they want to be placed in the postnuptial agreement would actually be invalid: such as trying to set parameters around child support payments.

Contact Fort, Holloway & Rogers

If you are considering whether you should create a postnuptial agreement, or want to know if your postnuptial agreement is valid, contact one of the esteemed Franklin family lawyers at Fort, Holloway & Rogers. Having a legal expert review or help craft your postnuptial agreement will help you have peace of mind that if this marriage ever did dissolve, you know your postnuptial agreement will stand up to court scrutiny.


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