By Sara Pitcher
Though pre-nuptial agreements tend to receive the majority of attention and are often encouraged by divorce attorneys, there is a lesser-known option that also serves as a protective marriage contract: a post nuptial agreement.
A “postnup” is similar to the more popular prenup except it is entered into after the parties have already married.
A post nuptial agreement proves it is never too late to define and protect your assets even if you did not have the foresight to execute an agreement before the marriage.
Validity Of A Post Nuptial Agreement
The law on post nuptial agreements varies from state to state, but, in general, a post nuptial agreement is valid if it is in writing, signed by both parties, and was not unconscionable at the time it was entered into.
Most states will not allow the parties to enter into agreements regarding children as the court must be able to make the final determination of what is in the best interests of the children at the time the agreement is being enforced.
Agreements dividing property, however, can be entered into at any time. Such an agreement may divide property such as income, personal property, real property or real estate, or other debts or assets.
All property must be disclosed at the time the parties enter into the post nuptial agreement. In the event property is concealed or not disclosed, the agreement will likely later be found to be unconscionable at the time it was entered into.
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What To Include In A Post Nuptial Agreement
The post nuptial agreement should include a clause stating under what state’s laws the agreement should be interpreted under, in the event either party later leaves the state.
Many people include a provision stating both parties are aware they have the right to consult with a divorce attorney and they have had to opportunity to do so, if either desired.
Also, a severability clause would be helpful. This clause states that in the event one clause of the agreement is found to be invalid or is struck by the court, the rest of the agreement is valid and enforceable. Otherwise, if one clause of the agreement were found to be invalid, the entire agreement would be invalid.
Your best recourse would be to seek out immediate legal assistance from a mens divorce attorney who focuses on domestic litigation.