Postnuptial agreement

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A postnuptial agreement is a written agreement executed after a couple gets married, or have entered a civil union, to settle the couple's affairs and assets in the event of a separation or divorce. It is normally "notarized" or acknowledged and is usually the subject of the statute of frauds. Like the contents of a prenuptial agreement, provisions vary widely but commonly includes provisions for division of property and spousal support in the event of divorce, death of one of the spouses, or breakup of marriage. In rare cases, a "prenup" may be enforceable even without a marriage, such as with a domestic partnership or registered partnership.

In the United States[edit]

In the United States, as with prenuptial agreements, five additional elements are typically required for a valid postnuptial agreement:

  1. it must be in writing (oral promises of this kind are always unenforceable)
  2. it must be executed voluntarily
  3. it must be done with full and/or fair disclosure at the time of execution
  4. it must not be unconscionable
  5. it must be executed by both parties (not their attorneys) "in the manner required for a deed to be recorded", known as an acknowledgment, before a notary public. [1]

Postnuptial agreements only came to be widely accepted in the United States in the latter half of the 20th century. For many years, US jurisprudence followed the notion that contracts, such as a postnuptial agreements, could not be valid when executed between a husband and wife. The inability of a husband and wife to contract with one another was due to the concept of marital unity: at the time of marriage, husband and wife become a single entity or person.[2][3] Since one may not enter into a contract with one's self, a postnuptial agreement would be invalid. Even after the US courts began to reject marital unity as a legal theory, postnuptial agreements were rejected as being seen to encourage divorce.[4]

It was only in the 1970s that postnuptial agreements were met with wide acceptance in the United States. The motivating factors considered to be behind this acceptance were the increase in divorce during the 1970s along with the implementation of so-called "no fault" divorces, granting divorces for any reason. Upon the wave of legislative and statutory changes, postnuptial agreements began to find acceptance in American jurisprudence.[5]

Within the body of law in the US, there are typically three kinds of postnuptial agreements:

  • An agreement that will provide for the assignation of marital property at the time of death of one spouse. These agreements typically have the surviving spouse waiving any rights to property they would have had the right to inherit under a will or statutory scheme.
  • Agreements that are for all purposes separation agreements. These agreements are entered into to avoid the time and cost of divorce proceedings. The disposition of property, other marital assets, custody, alimony and support and the like are agreed to by the marital partners upon separation and the agreement later, usually, incorporated into the final divorce decree.
  • The one most fixed in the mind of the public, are agreements that are an attempt to affect rights in a future divorce, usually limiting or waiving alimony and/or support and the division of marital property, which includes property obtained before and after the marriage.[5]

Canada[edit]

In Canada, postnuptial agreements are permitted, and in fact most provinces have statutes specifically allowing them. However, courts subject them to more legal scrutiny than prenuptial agreements. The reason for this is the legal theory that prior to marriage, neither spouse has any legal rights, so a spouse is not giving anything up by signing a prenuptial agreement. However, once married, various family law rights crystallize. Thus, if one enters into a postnuptial agreement, one is giving up rights that one already has.[6]

See also[edit]

References[edit]

  1. ^ Rachael McIntyre, "What Is A Notary Public", 'Los Angeles Notary Now' , June 20, 2016
  2. ^ Glanville L.Williams, The Modern Law Review, Vol. 10, No. 1 (Jan., 1947), pp. 16-31.
  3. ^ Robert F. Cochran, Robert M. Ackerman, Law and Community: The Case of Torts (2004), pp. 63.
  4. ^ J. Thomas Oldham, Divorce, Separation, and the Distribution of Property (1987), §4 et seq.
  5. ^ a b Rondal B. Stadler, "Prenuptial and Postnuptial Contract Law in the USA" (2003). www.rbs2.com/dcontract.pdf
  6. ^ "Post Nuptial Agreement".