Most people have heard of pre-nuptial agreements. In fact, many celebrities have openly advocated for pre-nuptial agreements and is a hotly contested issue when they divorce. What is not often discussed is a post-nuptial agreement. A post-nuptial agreement is an agreement that is made after a parties’ marriage. Pre-nuptial agreements are entered prior to the date of marriage in exchange for the marriage. For post-nuptial agreements, the exchange is the continuation of the marriage. In other words, without a post-nuptial agreement, the parties would otherwise divorce.
Many attorneys usually frown upon post-nuptial agreements for many reasons. For one, if the post-nuptial agreement is a worse deal than the actual divorce, an attorney would not recommend it. Furthermore, for many people, the continuation of the divorce is not a good enough exchange for the bargaining away of their rights. Nevertheless, for some people, a post-nuptial agreement is a good decision. For example, if both parties are elderly and do not plan on re-marrying, it is probably a better deal for them financially to stay married and take advantage of their social security and pension rights than they would if they divorced. Divorces can also be very expensive and not worth fighting if a post-nuptial agreement at that age will do the trick.
For some of our younger clients, after the threat of a possible divorce in the early stages of their marriage, a post-nuptial agreement makes sense. A divorce of less than 5 years may not entitle either party to substantial assets or maintenance, and the parties wish to continue with their marriage and not have to worry about the possibility of being liable for paying the other maintenance or having to divide their assets or non-marital assets. A post-nuptial agreement would ensure that any commingling or contribution that may have already happened would be waived or settled and that from now on it would be considered that party’s non-marital property.
If you feel that a post-nuptial agreement may be right for you, contact an attorney to discuss the pros and cons of taking this route in lieu of a divorce.