Postnuptial Agreements on the Rise

Divorce lawyers are seeing more and more clients interested in getting a postnuptial agreement made as most states in the US have signified a wider acceptance of their validity in court, if not in statute. It’s about time, too.

Postnuptial agreements have the same goal as prenuptial agreements: to establish the terms and conditions that will prevail in the event of a divorce. However, postnuptial agreements can be entered into at any time that the marriage is still intact, and can head off a pending divorce if it is properly constructed, or at least mitigate the attendant difficulties.

Unlike prenups, postnuptial agreements are not contingent on a divorce; it can be designed to kick in in the event of the death of one spouse. In that aspect, it has some elements of estate planning, because the postnuptial agreement can be used to detail dispositions of assets, liabilities, control of businesses, trusts, and bank accounts. A postnuptial agreement can also modify or eliminate on spousal claims to an estate that would otherwise be inviolable under the state’s family and estate law statutes.

Historically, postnuptial agreements were considered not valid because of the legal theory of marital unity, in which a married couple is considered as one entity. But with the prevalence of divorce in the US, this is obviously a theory that does not hold much water anymore, what with people embarking on two or even more marriages in their lifetime. Postnuptial agreements were also stigmatized as encouraging divorce, but in fact, some marriages have been saved because of the presence of this document.

Postnuptial agreements can include almost any stipulation, and some include bizarre clauses that are nevertheless considered valid provided that both parties signed the contract willingly and with full knowledge. Barring any issue of fraud or deceit, most postnuptial agreements are enforceable. Most states may review the conditions set in the agreement for fairness, but not all i.e. Pennsylvania.