Postnuptial agreements have a shorter history than prenuptial agreements do. Prior to the 20th century, women couldn't even sign contracts with their husbands. However, family law attorneys say that they're increasingly being asked to draft them for clients.
Prenups vs Postnups
These legal contracts are similar to prenups. However, they can be more difficult to persuade a spouse to agree to enter into. Further, even properly-drafted postnups can be more easily challenged in court. Not all states even explicitly recognize them under the law.
Although prenups are the better alternative, if you just didn't get around to it amid all of the wedding planning or one or both of you couldn't bring yourselves to get a prenup, it's better than not having anything in place.
Common Reasons Couples Get Postnups
Couples have different reasons for getting a postnup. For example, one or both spouses' financial circumstances may change considerably after marriage. They may feel they need financial protection if the marriage ends.
Often, however, postnups are drawn up after there have been problems in the marriage. A common scenario involves adultery. After one spouse cheats and the other wants a divorce, the straying spouse promises to stop, begs him or her to stay and the other spouse agrees -- with a caveat. That spouse wants a healthy share of the assets should they divorce, as codified by a postnup. This could apply if one spouse engages in some other type of behavior, such as excessive drinking, drug use or gambling, that the other finds unacceptable.
Sometimes a marriage is on the rocks, but the couple chooses to stay together either to give things another chance or for the kids' sake. However, with divorce no longer the impossibility they may have once considered it, they draw up a postnup to decide some financial and other issues that can help make divorce a less expensive, combative process if it occurs.
Family law attorneys can provide guidance on drafting a postnup given your individual circumstances. They can also advise you on the chances of it being upheld by a court in your state.
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