Why a Post-nuptial Agreement May Be a Good Idea

While it’s never romantic to think about the possibility of divorce while a marriage is thriving, there are many practical considerations that force spouses to think about post-nuptial agreements. For starters, before couples get married, they may not have much to discuss in terms of dividing their property. During marriages, couples have children and accumulate assets. A post-nuptial agreement can help spouses plan while the spouses get along – avoiding contentious and bitter divorces.

What is a post-nuptial agreement?

By definition, a post-nup is a contract that is entered into after the couple is married. According to Investopedia, a 2015 American Academy of Matrimonial Lawyers survey showed that postnuptial agreements focused on property division, alimony and spousal maintenance, and retirement accounts.

Some postnuptial agreements are designed to last for the length of the marriage. Other post-nups have a sunset clause which provides that the agreement expires if the couple stays married for a preset number of years.

Postnuptial agreements can’t settle child custody and child support issues because these issues are based on what is in the best interests of the children, and not the best interests of the parents. Courts need to ensure agreements on behalf of children protect the children.

The reasons spouses prepare and sign postnuptial agreements

Often, there’s an event that forces spouses to consider speaking to a Franklin family lawyer about a postnuptial agreement. Some of these events include:

  • An inheritance. Generally, in Tennessee, an inheritance is not considered marital property. Still, a postnuptial agreement can ensure that the person who receives the inheritance keeps the inheritance or, alternatively, that the inheritance is made part of the marital state. The postnuptial agreement can also address what happens to any increase in value of the inheritance or what happens if the inheritance is used for a family purpose such as home improvements.
  • Giving up a job to raise children. While child custody and support are not included in a postnuptial, parents do have the right to be concerned that they are sacrificing a career to stay home and raise the children. This sacrifice should be addressed through a discussion of property division and alimony if the divorce doesn’t last.
  • Business interests. A postnuptial agreement can address how the value of a business will be determined and who will control the business if a divorce occurs. For example, a spouse may waive her/his rights in return for more money or assets.
  • The postnuptial agreement can clarify who provided a gift, the value of the gift, and whether the gift should be considered separate property.
  • An affair. If one spouse has an affair, the other spouse may want assurances that if the affair or other affairs ruin the marriage, that the innocent spouse is protected.

Eligibility for a pension through work or the vesting of retirement benefits may also trigger a discussion about whether to have a postnuptial agreement.

Generally, postnuptial agreements that are negotiated through legal counsel and placed in writing are considered just. There are reasons, however, why a postnuptial agreement may be contested – such as that one spouse wasn’t truthful about the value of a business. Our attorneys have experience both in family law and in estate planning, and can anticipate any issues that could arise during or after the creation of a postnuptial agreement.

If you’re concerned that your marriage end in divorce, or that you just don’t understand your options, our experienced family law attorneys can help. At the Law Offices of Adrian H. Altshuler & Associates, we have been advising spouse since 1991. Our offices are located in Franklin, Columbia, and Brentwood. Please call us at 615-977-9370 or fill out our contact form to make an appointment.