A postnuptial agreement is a legal tool that married individuals can utilize in order to assert and organize the division of assets in the event of a divorce. In addition, provisions regarding support and custody can be included in the postnup as well. There are a variety of reasons why a married couple would sign a postnuptial agreement, but some common themes are the disbursement of wealth (assets, either shared or separate), custody of children, as well as non-divorce related issues such as the event of one spouse’s death.
If you did not do so prior to the marriage, it would be wise to consult with an attorney about any valuable assets you may possess, or potential income or earnings that you are unsure about in the future, and how a court may treat them (divide them) in the event of a divorce. For instance, while they may not physically possess it at the wedding, one of the spouse’s retirement funds could kick in 10 years into the marriage. Even though it was not addressed in the first pre-nup, that spouse could still protect that asset from division if a divorce were to occur.
However, just like the prenup, this legal document is an agreement between the two parties, and neither can force the other to sign an unfair agreement. Even if the spouse seeking the signature did coerce the other to agree to an overtly unfair agreement, a judge will usually nullify the agreement, and render it void and ineffective with respect to the divorce proceeding and results. Any provisions included must be within the bounds of state law and cannot include things like “no child support”.
In order for a postnup to be enforceable, both parties must have retained legal representation, as state law often requires that both sides have a divorce attorney review the agreement on their behalf. It may be a good idea to consult a divorce attorney about drafting one, after having them review your statement of net worth, and any list of assets you may have.