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Why do people draw up postnuptial agreements?

Postnuptial agreements haven’t been around for as long as prenuptial agreements. In fact, only in the 20th century did women gain the right to enter into contracts with their husbands. However, family law attorneys report that they are increasingly being asked to draft postnups.

Postnups are legal contracts similar to prenups, and they address many of the same issues. The most common subjects covered in postnups (in order) are:

— Property division– Spousal support– Retirement accounts– Who keeps the house— Legal fees– Infidelity

Prenups are a better alternative for protecting your financial well-being than postnups. It’s often more difficult to persuade a spouse to enter into a postnup. Further, postnups are less likely to be upheld in court if challenged. In fact, some state’s legal codes don’t even mention them.

However, if you and your partner opted not to get a prenup or just never found time for it amid your wedding preparations, a postnup can still provide important protections should the marriage end, particularly if one spouse has gained a significant individual financial advantage over the other.

Often, couples draw up postnups after they have experienced marital problems. Adultery is a common one. The wandering spouse may promise never to stray again if the couple can stay together. The other spouse may agree not to leave, but only if the errant spouse agrees to a postnup in which he or she agrees to give up a significant share of the couple’s assets should they eventually divorce.

This can provide some added incentive for spouses not to continue their adulterous ways. The same may occur after a spouse agrees to get help for drinking, drug use, gambling or other troubling behavior.

In some cases, couples may sense that they’re on the path to eventual divorce, but they aren’t ready to take that step just yet. Maybe they want to try to work things out. Perhaps they want to stay together until the kids leave home. However, they want to get some things codified in order to avoid a long, messy, expensive divorce if and when it happens. If things haven’t gotten so bad between them that they can’t sit down and work out a postnup with their attorneys, it can be beneficial later on.

Source: Bloomberg, “Why More Couples Are Signing Postnuptial Agreements,” Ben Steverman, April 28, 2017