Circumstances change over time in a marriage, both personally and financially. Divorce involves a certain amount of risk, and you may decide to do what you can to minimize it. Increasingly, married couples are turning to postnuptial agreements to set the financial terms in case they get divorced. Many have learned the hard way about not having some type of agreement in place prior to a divorce. Our Hendersonville divorce attorney at Davis Curry Law can represent you when it comes to negotiating and drafting a postnuptial agreement.
For whatever reason, you may not have negotiated a prenuptial agreement with your spouse before you got married. While an attorney would advise you that a prenuptial agreement is a good idea, not signing one does not necessarily mean that you can no longer protect yourself.
Why Spouses Will Sign a Postnuptial Agreement
A postnuptial agreement often follows a change in circumstances in the marriage. The relationship between the two spouses can change, or they may have different finances (perhaps an expectation of future wealth). Either way, there may now be a need for an agreement or a change to an existing contract.
Some reasons why a couple may sign a postnuptial agreement include:
- One spouse may need to demonstrate a commitment to the marriage and taking care of the other
- The spouses may not have had a strong sense of their finances at the time of the marriage
- The spouses have matured over time, and they have a better understanding of what is important to them personally
- The spouses want to allocate assets differently than they were in a prenuptial agreement
A postnuptial agreement can make sense for both the spouses. One gets protection in a way that assures them a certain amount of the marital assets, while the other may be insured from the uncertainty of going in front of a judge (especially if there are factors present that could influence a judge’s thinking in equitable distribution).
Although some may think that a postnuptial agreement assumes a divorce, it is not always the case. You can think of it as protection in the event of a divorce. The spouse in the weaker financial position may also feel the need to ensure that they receive a certain minimum amount of assets.
Terms Included in a Financial Settlement
Like a prenuptial agreement, a postnuptial agreement will include terms for the financial settlement if the two spouses get divorced. A postnuptial agreement will not address child support, since that is a right that belongs to the child. Here are some common provisions that you would find in a postnuptial agreement:
- Whether a spouse would receive alimony, and the terms of the financial support
- The terms of the division of marital assets (either certain assets, such as a business, or the entire asset pool)
- Which assets may be excluded from being considered marital assets
- Measures to value marital assets in the event of a divorce
You will not find any provisions about child support in a postnuptial agreement. Child support is an entirely separate right that belongs to the child.
Disputes Regarding a Postnuptial Agreement
The main dispute regarding a postnuptial agreement is whether it can be enforced. The spouse who would be receiving property and assets under the terms of the agreement may believe that the agreement should be thrown out because there were issues that tainted its negotiation and signing.
A postnuptial agreement is a contract between partners. The same principles that apply to any contract govern prenuptial agreements. There are various reasons why the agreement may not be enforced:
- One spouse coerced or pressured the other spouse to sign the agreement
- A spouse did not make full disclosure of their assets to the other
- The agreement is lopsided in favor of one of the spouses
- Each spouse did not get the opportunity to retain their own counsel
- There was some other type of fraud in the negotiation or contractual process
If a judge finds that the postnuptial agreement was not negotiated in accordance with the general rules of contract law, they could strike down the entire contract. Then, the terms of the divorce would be decided by the court.
How a Lawyer Can Help You with a Postnuptial Agreement
It is crucial that you get legal help when you are considering a postnuptial agreement. There is nothing that says that you have to sign a postnuptial agreement.
First, you need to determine whether it makes sense for your own situation. The decisions that you make now could be binding on you if you get divorced. In other words, they can affect your entire future.
When you hire a postnuptial agreement lawyer, they can do the following for you:
- Assist in devising a strategy
- Help you negotiate the terms of the agreement
- Draft the language of the agreement
- Review any agreement that is presented to you and suggest necessary changes
- Provide advice tailored to your situation, including whether signing the agreement is in your best interests.
We know that you are dealing with a difficult and potentially thorny situation when you are negotiating a postnuptial agreement. We do everything we can to listen to you and understand your own situation. We handle your matter with the delicacy necessary for the situation, while effectively negotiating on your behalf. When you are dealing with something as sensitive as negotiating with your current spouse, you need to have a lawyer who is approachable and can understand your concerns.
Contact a Postnuptial Agreement Lawyer in Hendersonville, NC Today
Each spouse needs their own attorney when negotiating a postnuptial agreement. Davis Curry Law understands that postnuptial agreements are sensitive matters between spouses, and we handle your matter with discretion and understanding.
At the same time, we provide strategic counsel that can help you during negotiations. You can schedule an appointment to speak to one of our attorneys by reaching out to us online or calling us today at 828-900-2420.
