Family Law

Guest Post :: Be Careful When Drafting a Postnuptial Agreement

By J. Benjamin Stevens

While you probably aren't at risk of losing half of your stake in a professional baseball team, you and your spouse should still be very careful when drafting a postnuptial agreement. If there are any problems with the process of negotiating, drafting, or signing the agreement (totally apart from the agreement's terms), a court may well find the whole thing invalid.

A postnuptial agreement is very similar to a prenuptial agreement, except it is made after two people are married, as opposed to before. Couples usually opt for a postnuptial agreement for the same reasons that prenuptial agreements are often a good idea, some of which are listed here. 

Typically, a couple will create a postnuptial agreement when their financial situation suddenly changes, necessitating a formal arrangement, or rendering an earlier agreement inadequate to address these new issues.

In any case, entering a postnuptial agreement requires the parties to make some very important decisions, and possibly contract away some valuable property interests. For that reason, the laws of most states require measures to ensure that both parties know exactly what they're doing when they enter a postnuptial agreement, and that their agreement is completely involuntary. 

To this end, most states have a few strict requirements that must be followed for a prenuptial or postnuptial agreement to be valid, including:

• Each party must be represented by their own attorney.
• The agreement must be in writing, and clearly describe how the rights of each party are affected.
• The agreement must be signed, witnessed, and notarized.

If any one of these rules is not followed, a court might find the whole agreement to be invalid. Because these agreements often don't become issues for a very long time, you might go on for years, or decades, structuring your property under the assumption that eventually turns out to be invalid. 

The turmoil and difficulty this might cause cannot be overstated. So, if you think that your situation warrants a postnuptial agreement, it's absolutely essential that you and your partner speak with a family law attorney before taking any action.

This Guest Post was written by John Richards, who writes for LegalMatch.

Full post as published by SC Family Law Blog on December 09, 2010 (boomark / email).