Your thoughts after getting married are undoubtedly on the future. Where you and your spouse are headed in your relationship. What you all are going to accomplish? Marriage is about the possibilities of what may be in a positive sense. For that reason, many of us are hesitant to think about what may happen negatively in a marriage. The last thing we are contemplating is the end of that new marriage. Didn’t the wedding just happen? Why think about what can happen at the end of your marriage?
Although it may be bothersome to contemplate your marriage will come to an end. Whether that end comes in the form of annulment, divorce, or death- your marriage cannot last forever. In the case of a divorce, many people in your shoes are caught flat-footed. You are cruising along in the relationship and the next thing you know your husband files for divorce. Completely out of the blue. No warning. What are you going to do?
This is what I mean by “being caught flat-footed.” Instead, choose to approach your marriage with an eye towards planning. A postnuptial agreement allows you to do just that. Accordingly, the Law Office of Bryan Fagan stands ready to help you in drafting and completing a post-nuptial agreement. Here is the essential information you need to know. Contact our office for a free-of-charge consultation with an experienced family law attorney.
The difference between a prenuptial and postnuptial agreement
Many of us have heard of a prenuptial agreement. A prenuptial agreement is an agreement entered into by two parties before their marriage. Prenuptial agreements are frequently the subject of news stories involving celebrity divorce cases. However, you do not need to be a celebrity to benefit from a premarital agreement. Any married person has the potential to gain a great deal from entering into a premarital agreement. However, it takes planning and forethought to achieve the maximum benefit possible.
A prenuptial property agreement is created before your marriage. There are very few differences between the two documents in a practical sense. Both relate mainly to the division of property upon divorce. The main difference is when the document is created. Creating a postnuptial agreement means that you may not have been ready to do so before your marriage. If you have questions about this, please contact the Law Office of Bryan Fagan. We can provide you with information geared towards helping you understand the timing of property agreements related to marriage.
Peace of mind is important in a marriage. Feeling like your property is attended to helps you to focus your attention on being a better spouse. Many people identify issues to negotiate before their marriage. If this is not your situation that is ok. As they say- the best time to deal with an issue was yesterday. The second-best time is right now.
The purpose of a postnuptial property agreement
Protecting property and assets is not selfish behavior. Rather, allocating property and assets within a postnuptial agreement may be an act of charity towards your spouse. Many people have the impression that a postnuptial agreement exists only to hide away property. Rather, postnuptial agreements exist to provide you with a plan. Planning on how to divide property is better than scrambling at the end of your marriage to do so.
Imagine the following situation. You are divorcing your spouse. The two of you have not spoken in weeks. You are living with your sister. Your husband is at home. Talking to him on the phone is difficult. You two have never been great at communication. The difficulties in your marriage have made it even tougher. Now your husband has filed for divorce. You were just served with the divorce papers. While you do not have any minor children at home you do have property.
What you are faced with now is the prospect of negotiating through property issues with a spouse who is not talking to you. Does not sound like fun. Additionally, this does not make for a great opportunity to negotiate on anything. Rather than place yourself in a situation like this, negotiating a postnuptial property agreement is much preferable. You tackle the issues of a divorce before the divorce begins. Approaching these topics with a spouse who is not upset with you helps a great deal.
Avoid surprises with a postnuptial agreement
Surprises are fun when it comes to birthday parties. Otherwise, most of us would like to avoid surprises at all costs. This goes for surprises related to marital property. Marital property agreements (another term used for postnuptial agreements) tend to help avoid surprises. Specifically, when it comes to your property division postnuptial agreements help married people understand what happens in the event of a divorce. That way you do not have to fret about what a divorce has in store for you.
Typically, one of the great unknowns in a divorce is how the property is divided up. A great deal of time and money can be spent planning out this process within the divorce. However, when a postnuptial property agreement enters the equation that is a game changer. The agreement already contains a plan for dividing property and allocation of assets. This way you can focus on building a life post-divorce. The less time and money spent on complex issues during a stressful time is another added benefit.
How to create a valid postnuptial property agreement?
Four criteria must be met for a postnuptial agreement to be enforceable. First, the document must be in writing. An oral contract between you and your spouse is invalid as far as a postnuptial agreement. Get the agreement down in writing for it to be considered valid. Working with an attorney is a great way to ensure this occurs. When both you and your spouse have attorneys, this helps ensure both of you have advice tailored to your circumstances, as well.
Both you and your spouse must agree voluntarily. The circumstances of your negotiations and drafting of the document are important. Appearing to strongarm or force your spouse to sign something puts its enforceability into jeopardy. Consider documenting your negotiations, if possible. Both spouses working with an experienced family law attorney helps, as well. This provides everyone with an opportunity to ask for advice and perspective on these important issues.
Disclosure of all financial information
One of the most important attributes of a good postnuptial agreement is the ability of both spouses to disclose all pertinent financial information. Coming forward and making known to your spouse all information regarding your finances is necessary. Hopefully, this was done before your marriage. Pre-marriage counseling involves this type of conversation. However, given that you are now married it is essential to come forward with financial disclosures. Assets, income, debt, and other elements of your financial profile need to be a part of this discussion.
There are no formal timelines to follow when drafting a postnuptial agreement. However, giving yourself and your spouse a plan to follow is sensible. For example, consider adding a deadline to turn over relevant financial information as part of your negotiations. This way you both are not putting this off until an undetermined date. Moving forward toward a resolution of this matter is ideal. Deadlines spur action and accountability.
The attorneys with the Law Office of Bryan Fagan possess the experience you need in negotiating a postnuptial property agreement. Our attorneys walk side by side with individuals and families in complicated situations every day. We know how tough a divorce is on families. With that in mind, we want to help you negotiate the best postnuptial agreement possible. Doing so helps to avoid the most unpleasant aspects of a divorce.
Focusing on enforceability
Why draft a postnuptial agreement if it cannot protect you in the future? This is a reasonable question to ask. The reason why people like yourself negotiate postnuptial agreements is to protect themselves and their assets. A postnuptial agreement is not worth the paper it’s printed on if you cannot enforce the document. Until you go through a divorce the agreement provides you with peace of mind and not much else. Therefore, focusing on the enforceability of the document is a smart move to make.
Filing for divorce means taking your postnuptial agreement and attaching it as an exhibit. In an Original Petition for Divorce, you specify that marital property should be divided according to the terms of the postnuptial agreement. So long as your agreement is in writing, is free of duress, and proper disclosure of financial information was made the document should be enforceable. Following these steps provides you with an opportunity to move forward with confidence.
A family court judge reviews your agreement
Ultimately, a family court judge will review the language in your postnuptial agreement for enforceability. Challenges to the enforceability of the agreement tend to revolve around a few circumstances. First, you and/or your spouse did not disclose all financial assets or debts during the negotiation. Your spouse producing evidence that you did not make known a large business debt is certainly relevant. Likewise, if the document is so unfair in dividing a particular asset that portion of the agreement may be unenforceable.
Having an uncomfortable conversation now rather than in the future
As experienced family law attorneys, the Law Office of Bryan Fagan knows a thing or two about uncomfortable conversations. These are part and parcel of the world of divorce. That does not mean that this sort of dialogue is not necessary or productive. Rather, in most divorces this kind of “hard talk” usually does need to occur. However, hard conversations need to be constructive to produce anything worthwhile. Having a hard conversation for its own sake is not a worthwhile goal.
Disagreements happen in negotiations for postnuptial agreements, too. We are not going to try and argue that negotiating a postnuptial agreement is easy. However, what our attorneys find to be true is that the negotiations in post-nuptial agreement settings tend to be more productive than in a divorce. This may relate to you and your spouse being on better terms early in your marriage than later during a divorce. Whatever the reason, constructive negotiations in any setting depend upon mutual respect.
Identify potential sources for disagreement in your marriage
Every marriage has areas that are ripe for disagreement. Significant differences in your income levels are one of those areas. We see that spouses who earn dramatically different incomes tend to have different views on family finances. This translates into problems seeing eye to eye on how to divide marital property in the event of a divorce. Avoiding this type of situation is possible by negotiating a postnuptial agreement.
Without reservation, our attorneys recommend identifying these potential sources of disagreement. Negotiating a postnuptial property agreement means being honest with one another. Withholding information or documentation is a surefire way to have your postnuptial agreement voided.
Benefits to your marriage of a postnuptial agreement
Before we go any further, it bears mentioning that negotiating a post-nuptial agreement stands to improve your marriage. We have all heard the saying: an ounce of prevention is worth a pound of cure. Preventing future problems from occurring is an ideal scenario. In a divorce, you are dealing with problems that have become unsolvable within the marriage. For that reason, people seek divorce every day. However, a prenuptial agreement can prevent major issues from arising.
Communication is a critical aspect of marriage. Spouses who can talk through issues tend to do better in their relationship. If you and your spouse are considering a postnuptial agreement for financial reasons, then you are wise to do so. However, consider the benefits to your marriage of negotiating a postnuptial property agreement. By talking through the issues now you can identify what areas of your marriage are problematic.
From there, attending therapy, paying bills, and generally being more open with your finances become options. Letting these issues stagnate means that the emotions surrounding them do as well. Even if you were able to work through those issues on a practical level the emotions wouldn’t be so easily fixed. Addressing these issues now means not having them, potentially, end your marriage down the line.
When are postnuptial agreements most beneficial?
Postnuptial agreements do not always appeal to younger individuals. There are so many issues to consider in a young marriage. Diving into deep financial waters may not be one of those issues that interest you all. However, as time goes by the benefits of a post-nuptial agreement expand. Many times, as your income and that of your spouse become less equal the benefits of a postnuptial agreement become apparent. Changing circumstances require a pivot in your thinking.
As you grow older the amount of property you must protect hopefully increases, as well. Then, the more property you own your joint net worth changes. With those changes comes a different perspective on limiting risk. Divorce cases are full of risk for spouses of all ages. No one group is immune from the impacts of a divorce. Having a plan to deal with the fallout of a divorce shows a great deal of wisdom.
Consider what you would do if you or your spouse inherited a great deal of money. Inherited money is typically held as the separate property of the recipient. This means that a court cannot divide this money in a divorce. However, having a substantial amount of separate property draws into question whether the community property requires a disproportionate split. Again, this is something to consider as you see your circumstances changing. Creating an agreement where the community estate is shared in a specific way makes sense here.
Other situations where a postnuptial agreement makes sense
What about if you own a small business? It may have been a company you started years ago. However, now that you are married your spouse has contributed their time and effort to build the company. In a situation where the two of you have built a life together concepts like fairness and equity matter. A post-nuptial agreement stands to act as a way for the two of you to prepare for a divorce. The last thing you want to do is leave your spouse out to dry.
In a second marriage, the property you own may be of sentimental or relational value. Ensuring that your children and not your current spouse receive family property is important to many people. A postnuptial agreement removes the possibility that your spouse winds up receiving any property like this in your divorce. Again, as situations change you need to evaluate your marriage. A postnuptial agreement is a great option to consider.
Questions about the material contained in today’s blog post? Contact the Law Office of Bryan Fagan
If you have any questions about the material contained in today’s blog post, please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys offer free-of-charge consultations six days a week in person, over the phone, and via video. Interested in learning more about how your family is impacted by the material in this blog post? Contact us today.
Evan Hochschild was raised in Houston, TX and graduated from Cypress Creek High School. He went on to graduate from Southwestern University in Georgetown, TX with an undergraduate degree in Political Science. While in college, Evan was a four-year letterman on the Cross Country team.
Following in the footsteps of his grandfather and uncle before him, Evan attended law school after he completed in his undergraduate studies. He graduated from St. Mary’s University School of Law and has practiced in a variety of areas in the law- including family law.
Mr. Hochschild is guided by principles which place the interests of clients first. Additionally, Evan seeks to provide information and support for his clients with the heart of a teacher.
Evan and his wife have four small children together. He enjoys afternoons out and about with his family, teaching Sunday school at his church and exercising. A veteran attorney of fourteen years, Mr. Hochschild excels in communicating complex ideas in family law simply and directly.
