Reason to Hire a Postnuptial Agreement Lawyer

What is a Postnuptial Agreement?

A postnuptial agreement is a contract between the spouses after their marriage. It governs the same issues as a prenuptial agreement and may address any matters, including the disposition of property and support, except for the custody of children. While not all states recognize the enforceability of postnuptial agreements, the New Jersey Courts have held that they are enforceable so long as they are unambiguous and fair. Like prenuptial agreements, postnuptial agreements carry with them a presumption of validity under certain conditions. If found to be unconscionable at the time of enforcement, a court shall not enforce the terms of the agreement if found to be unfair to one of the spouses .
Couples often find that it is necessary to negotiate and draft a formal written agreement after the marriage due to certain life events. These can include any significant income increases, gift or inheritance received by one spouse, and research shows that the amount of couples entering into these written agreements has increased considerably over this past decade. Often seen with celebrities, they used to be dismissed as having no place for average citizens, but that has turned over the years. More people now are willing to engage in discussions about their individual and collective financial standing, and whether to protect themselves or their assets before things become irreparable.

Advantages of Hiring a Lawyer

The benefits of hiring a postnuptial agreement lawyer when preparing your marriage contract are too numerous to list. However, there are three important reasons for operating with the guidance of a qualified lawyer. Your lawyer will possess detailed knowledge regarding the local family law — including how marital assets or property have traditionally been handled. Without this expertise, your agreement may not be enforceable and it could lead to intensive litigation in the future. As well, your agreement will be personalized to the needs of you and your spouse, ensuring that it fits your life situation. Additionally, an agreement that hasn’t been crafted by a skilled family law attorney may not even contain the requisite elements for a binding marital agreement. This may come as a shock to many in Alberta, as many lawyers don’t handle postnuptial agreements. Simply "going through the motions" is a poor way to handle such a large endeavor. You need a lawyer who will dedicate time, resources, and effort to giving you the best agreement possible. Furthermore, postnuptial agreements are often negotiated out of court. Even if it does go to court, the process will be less confrontational and expensive. A skilled lawyer will also help find solutions to any potential sources of conflict that have arisen in difficult marriages. With so many rules, regulations, and precedents, it’s vital that you have a professional on your side.

When Does a Postnuptial Agreement Make Sense

Life is unpredictable. Even the healthiest couples face the possibility of divorce, and many happily married couples change their financial circumstances after they walk down the aisle. A skilled postnuptial agreement lawyer can help you draft a legal document that covers your needs should the unexpected happen.
Here are a few scenarios when a postnuptial agreement may be a wise choice:
You need to keep your business ownership clear. If you own a business, it’s important to understand whether you own part or all of the business after saying "I do." If you and the business you started as a single person don’t define who owns what in a postnuptial agreement, you’re at risk for problems once you reach couplehood. An experienced postnuptial agreement lawyer can take the guesswork out of ownership definitions.
You have been married before. Whether you arrive at a (second or third) marriage without prior children, alimony or inheritance, you still have a history. You probably want to preserve the assets you had before you plan to marry again. But if you do have children, you may also want to specify what belongs to your second family, and how these assets should be divided among those children.
You plan to receive an inheritance or expect a sizeable gift. Just as a divorce settlement could impact your children from a prior marriage, a postnuptial agreement can protect your children by guaranteeing them a certain sum that you have received, simplified separation of joint assets and spousal support. If you expect a large gift or inheritance, you don’t want to put your kids in the situation where they have less later because you shared more now.
Your salary has changed. Chances are, you earn more now than you did when you first got married. Even if you haven’t received an actual bump in pay, you may have made more valuable career choices that have positioned you for optimal success. If you continue to work hard, you may be able to increase your salary, but with a postnuptial agreement, you don’t have to split your new gains.
You’re a professional. Doctors, lawyers, accountants, brokers and other professionals can benefit from creating an agreement that gives a better sense of what they offer and what their spouses will receive in terms of the value of a highly educated or specialized degree.

Requirements for a Solid Agreement

The cornerstones of a valid and solid postnuptial agreement include a few necessary components. These are mutual consent, full and honest disclosure of assets, and legal provisions that ensure its enforceability. Let’s take a closer look at these elements.
Mutual Consent. For a postnuptial agreement to be enforceable, both spouses must be in mutual agreement and represent independent interests of their own. Both spouses must be able to show that each person entered the arrangement voluntarily, having a complete understanding of what the agreement entailed and how it affects the rights of both parties. Each spouse will need to demonstrate that upon entering the contract, they were well aware of the future gains and potential losses associated with the agreement.
Full Disclosure. At the time the postnuptial agreement is put into effect, both spouses are required to discuss the complete and open disclosure of their property holdings and income. Without disclosure of all current assets, the agreement would not be binding. The Florida courts see nondisclosure as fraud and treat any agreement that was obtained through fraud as void. Therefore , it is critical that you tell your spouse everything there is to know about your assets. This includes bank statements, tax returns, financial statements, gift or inheritance documentation, credit card statements, and all relevant accounting information.
Furthermore, if one spouse intends to relinquish property through the arrangement, the other spouse must be aware of exactly what property will be surrendered so as to avoid the issue of dissipation of marital assets in the event the marriage later ends in divorce.
Legal Compliance. Along with the other two elements, any agreement must comply with the requirements of the Florida Statutes. Certain provisions will be considered unenforceable, such as those which would limit or reduce child support or provide for a conspiracy while preventing one spouse from reporting a crime or domestic violence.
Enforceability will also be a factor if either spouse could have been coerced into signing the agreement or if it places one spouse in an obvious disadvantage over the other. In these cases the agreement could be challenged in the courts and the judge’s decision would be final.

Finding the Right Lawyer

When choosing a postnuptial/marital agreement attorney there are several factors to consider. You should certainly examine their experience in the area of marital agreements. Also, review their website for testimonials from former clients to review the level of satisfaction other clients have had when using the lawyer. Marital Agreements attorneys also need to understand family law issues as many issues covered in a postnuptial/marital Agreement require familiarity with the issues involving Child Custody, Support and other issues related to the breakdown of a marriage.

Common Questions

Answers to Some Commonly Asked Questions about Postnuptial Agreements:
a. What is the cost of retaining a postnuptial agreement lawyer?
Each postnuptial agreement varies in its complexity and in the time and amount of work required to draft it. Most postnuptial agreements are completed on average in one month. Most attorneys charge hourly rates and will keep a record of the time that they devote to the representation. Retaining an attorney to draft a forum postnuptial agreement is an affordable process. It is much more economical than hiring a divorce lawyer. A postnuptial agreement can save you time and money if you and your spouse decide to file for divorce.
b. What complaints are filed against a postnuptial agreement?
Generally, postnuptial agreements are not subject to attack. A party seeking to set aside a postnuptial agreement must demonstrate that the agreement is materially unfair. The burden of demonstrating that the agreement is unfair is on the person challenging it . The reason a postnuptial agreement is relatively secure from attacks is because parties to a contractual agreement are required to sign the agreement with the knowledge that consequences flow from the execution of the agreement (for example, equitable distribution). This is why a postnuptial agreement is usually not subject to challenge like a prenuptial agreement. There is no valid reason to have a postnuptial agreement that is in essence a prenuptial agreement that is executed after the marriage.
c. How does the court enforce a postnuptial agreement?
One method which parties use to enforce a postnuptial agreement is to request that the court incorporate the terms of the postnuptial agreement into a judgment of divorce. In addition, if one party refuses to comply with the terms of the postnuptial agreement it can be enforced by proceeding with a motion (or in some cases obtaining a judgment) in civil court. Postnuptial agreements are not only enforced in divorce actions. If a claim is overlapping with a postnuptial agreement, such as an entitlement to counsel fees, the application may be enforced in civil court.