Unlike premarital or prenuptial agreements (“prenups”), which are contracts signed by two people prior to getting married, postnuptial agreements (“postnups”) are contracts entered into between spouses who are already married and who plan to stay married.
For a variety of reasons, postnuptial agreements are becoming increasingly popular among married couples. In the recent Wall Street Journal article, Why Postnuptial Agreements Are on the Rise, Allman Spry Family Law attorney Joslin Davis is quoted discussing the increase in spouses seeking postnuptial agreements.
What is a Postnuptial Agreement?
A postnuptial agreement is a contract entered into between spouses during the marriage that addresses how each spouse’s property rights and financial affairs will be handled in the event of death, separation, or divorce. While postnuptial agreements generally address how the entire marital estate will be divided upon divorce, they can carve out how one specific asset will be treated upon divorce.
Postnuptial agreements rarely speak to nonfinancial terms of a divorce, and if they do, it is questionable if such provisions would be enforceable upon divorce. For example, provisions regarding household duties (taking out the trash, making beds, washing dishes, etc.) would be unenforceable as against public policy (i.e., courts will not usually interfere with the privacy of an intact marriage). Provisions pertaining to child custody or child support would be void, and at most, would only be considered by a court as indicative of the parties’ wishes when rendering a decision in a subsequent child custody or child support action.
Postnuptial Agreements Rarely Include Estate Planning Provisions.
If a postnuptial agreement does include language intended to effectuate an estate plan, it is questionable whether such language would be enforceable upon the death of the spouse in the event of a will, trust, or even intestacy to the contrary. However, postnuptial agreements sometimes include inheritance waivers. For example, spouses with adult children from prior marriages sometimes include spousal inheritance waivers so that each can leave their respective estates to their children from prior marriages.
If you are interested in speaking with a North Carolina family law attorney in Winston-Salem about how a postnuptial agreement can benefit you, contact Allman Spry to learn more.