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Making Your Postnuptial Agreement Enforceable: Former CEO's High Dollar Divorce Illustrates the Stakes

Postnuptial agreements, like prenuptial agreements, can set out how property will be divided upon divorce. They have been increasingly advocated as a way to calm a troubled marriage by reducing uncertainty. However, as a high dollar divorce in Connecticut currently illustrates, it is very important to make sure a postnuptial agreement will be enforceable.

The Hartford Courant reports that the soon-to-be ex-wife of former United Technologies Corp. Chairman and CEO George David has asked a Connecticut court to invalidate the couple's 2005 postnuptial agreement. Marie Douglas-David's problem with it? The $43 million it allocates to her won't support the Swedish countess' $53,000 per week lifestyle. If the agreement is thrown out, Mr. David may have to shell out a much larger chunk of his estimated $329 million in assets.

The problem that Mr. David may encounter is that courts can be more exacting of postnuptial agreements than they are of prenups. The law of postnuptial agreements varies from state to state, and in many places remains in flux. Some states treat them like prenups, but other states are harder on them.

Unlike prenups, postnups in some states require "consideration" (something of value) from both sides. Amongst those states, some say that a promise to remain in the marriage is consideration enough, while others require more. In some states, postnuptial agreements must be substantively fair.

Here are five things you can do to make a postnuptial agreement more likely to stand up:

1. Have both side represented by their own attorneys.
2. Disclose absolutely all of your income and assets.
3. Make sure both sides are giving something of value in the deal.
4. Have both sides write and sign their own explanation of why they are entering the agreement and what it means.
5. Make it fair.

• Postmarital Agreements (FindLaw)
• Postnups Gaining in Popularity (Financial Advisor)
• Criteria for a Valid Prenuptial Agreement (FindLaw)
• Living Together Contracts (FindLaw)
• Division of Property in Divorce (provided by McNeil & Goldstein, LLC)

Full post as published by FindLaw's Common Law on March 18, 2009 (boomark / email).