Why can't you have a post-nuptual agreement?

[According_to_Pliny]

Seems like that would make sense.

Sometimes very important things need to be agreed to before something is done, and that agreement should be enforceable.

For example, “I will adopt your children from a prior marriage, but if we divorce within the next 5 years, then custody and support will be thus: _____”

[hajario]

This probably belongs in GQ.

You can have a post-nup. One of my relatives has one to separate some of her assets from her husband’s. They did it because despite all of his good qualities, he is a financial mess. She was concerned about losing some of her assets because of his bad financial decisions often led to debt. Also he had a law suit happy ex-wife and she didn’t want to get attached.

[WhyNot]

I reported this thread so a mod can move it to a more appropriate forum.

[Gary_T]

There’s no reason why you can’t have a postnuptial agreement. Why do you assume you can’t?

Just google on postnuptial.

[pravnik]

Pre-nup agreements generally involve marital property, not custody and support. Agreements regarding child support, whether pre-nup or post-nup, are generally unenforceable in most jurisdictions as against public policy. You can make a pre-nup agreement to never seek any child support, but if any party changes their mind the courts won’t enforce it. Custody would likely be treated much the same way; if you make an agreement that your wife will have full custody in the event of a divorce and she turns into a crack addict, the court isn’t going to send the children off to live with her because it’s not in their best interest.

[Si_Amigo]

Isn’t a divorce decree a post nuptuial agreement? :dubious:

[CookingWithGas]

You can, but I think one reason you don’t hear more about them is that once the marriage takes place, the parties have less leverage to get the other party to agree to something. The most well-known cases are celebreties who have lots more assets than their spouse-to-be and want to protect those assets against any claims in case of divorce. Well, if you’re the spouse-to-be, what is your motivation to sign such an agreement *after * the wedding? Before the wedding, you might agree because you want to marry the person anyway. But once you’re married, there’s no benefit to you.

BTW Si Amigo a divorce decree would be best described as a post-marital agreement. A post-nuptial agreement is after the wedding but while the marriage is still apparently intact.

[According_to_Pliny]

@WhyNot

I reported this thread so a mod can move it to a more appropriate forum.

This a question about facts. There is a discrete answer. I don’t care about anyone’s opinion.

To the other commenter’s:

Ok, ignore custody and child support. I was just trying to come up with a scenario.

My understanding was that married people are considered legally entwined in most material ownership ways, as well as sharing income in community property states. And that the sole reason for the existence of pre-nups is that post-nups are unenforceable.

[According_to_Pliny]

@Gary T

There’s no reason why you can’t have a postnuptial agreement. Why do you assume you can’t?

Just google on postnuptial.

If you had followed your own advice before posting it, you would realize that postnups are not legal in all states, including the one I care about.

The question is “Why not” There must be a reason.

[pravnik]

@Si Amigo

Isn’t a divorce decree a post nuptuial agreement? :dubious:

A final decree can be the result of an agreement, but not necessarily. The decree is the court’s order. Some people are in disagreement with everything in their divorce decree!

[Gfactor]

@According to Pliny

My understanding was that married people are considered legally entwined in most material ownership ways, as well as sharing income in community property states.

Depends on the state, and the kind of property, and in many cases, when it was acquired. In Michigan, for example, husband and wife can have separate property, but family courts have a lot of leeway in making an equitable division of property. http://www.divorcenet.com/states/michigan/marital_property_in_michigan

Community property law is trickier. http://www.trustsandestates.net/Nutshell-Public/CPNutshell/IceCPNutshell.rtf (rich text format document)

An agreement can be useful to avoid the risks of having a judge divide the property. It can also be a valuable tool for estate planning, especially if the parties have been married before, or one has a lot of assets:

Sometimes persons intending to marry use premarital agreements as a way of clarifying their expectations and rights for the future. Another reason for making such agreements is to try to avoid uncertainties about how a divorce court might divide property and decide spousal support if the marriage fails. A man or woman who wants a future spouse to enter into a premarital agreement often has something he or she wants to protect, usually money. One or both partners may want to avoid the risk of a major loss of assets, income, or a family business in the event of a divorce. For people marrying for a second or third time, there might be a desire to make sure that a majority of assets or personal belongings are passed on to the children or grandchildren of prior marriages rather than a current spouse.

http://www.abanet.org/publiced/practical/books/family_legal_guide/chapter_3.pdf

And that the sole reason for the existence of pre-nups is that post-nups are unenforceable.

Generally, no.

Postnupital agreements also known as postmarital agreements are agreements entered into after a marriage has taken place, but before the parties seek to end their marriage. As with premarital agreements, one or both of the parties usually is seeking to protect assets or income in the event of divorce or death.

Pennsylvania Divorce and Family Law

New Jersey Premarital (Prenuptial) Agreements

http://family.findlaw.com/marriage/marriage-agreements/post-marital-agreements.html

http://www.maurerrifkinandhill.com/article.jsp?practArea=29&articleIndex=4

http://rushforth.net/answers5.html#Postnuptial

http://courts.co.calhoun.mi.us/04dom012.htm

But see,

Postmaritals in Minnesota

Until recently, Minnesota law on postmarital agreements, while less developed than that on premarital agreements, has been workable for the practicing lawyer. M.S.A. section 519.06 unequivocally permits husbands and wives to contract with each other on any subject. But a single Minnesota Court of Appeals opinion, Lerner v. Lerner, unaccountably holds that, for a postmarital agreement to be valid, the spouses must be living apart at execution. With an eye on this case, good lawyers have been drafting postmarital agreements for their clients, whether the clients are living together or apart, warning that they might not hold up. While the established standards for testing the validity of premarital agreements did not explicitly apply to postmarital agreements, most lawyers tried to comply with them anyway, knowing that courts would treat an agreement more kindly if procedural and substantive fairness attended its execution.

http://library.findlaw.com/2000/May/1/127336.html

and

http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=nc&vol=appeals95\appeals1121\&invol=williams

There is also another kind of marital agreement called a separation agreement. Those are intended to settle issues when the parties are already splitting up. In fact, sometimes they have to be living apart for the separation agreement to be valid.

[Gfactor]

There are probably a few reasons why post-nups are less common:

1. Fiduciary relationship issues. They can be a bit harder to enforce. As some of the links suggest, spouses are held to a higher standard when it comes to contracts because of their fiduciary relationship. Courts will scrutininize their agreements for undue influence or non-disclosure. http://www.divorcenet.com/states/california/top_10_family_law_issues_for_2005; But see, http://oc-divorce.typepad.com/california_divorce_and_fa/2006/05/index.html (No Presumption of Undue Influence in post marital agreements absent proof of unfair advantage). Because of this, the parties have to build a record that the deal was fair, and nobody was unduly influenced. That often means that both parties have their own lawyers.

2. Less bargaining power. It’s one thing to say “no prenup–no wedding,” and another to say “no agreement–we get divorced.” You see, a divorce will be bad for the party seeking the postnup–that’s why they want a postnup. So if one party asks the other for a postnup, and the other says no, the best alternative to a negotiated agreement is often the status quo, and probably some serious estate planning work.

Here is some more stuff on postmarital agreements:

http://www.law.siu.edu/research/29fallwintpdf/Domsky%20Word%20Perfect%20Final.pdf

http://www.rbs2.com/dcontract.pdf

http://fsnews.findlaw.com/cases/ca/caapp4th/slip/2006/b179751.html

[JKellyMap]

Just did a post-nup myself. In my case, would have been a pre-nup, but outside forces (i.e., immigration law absurdities, but that’s the stuff of a different thread) necessitated getting hitched before the pre-nup negotiations were concluded (you should take a couple of weeks minimum for both parties to think over the proposed agreement, so that there is less reason to suspect undue influence or pressure – in fact, California recently mandated a one-week waiting period).

In my case, the post-nup was essentially identitical to what the pre-nup would have been. As for the “after marrying, no more incentive on the part of the person with less property to sign” point which another poster made, that’s true, but in our case my wife was generous enough to understand that there was no point in introducing friction by suddenly playing hardball – it’s bad enough having to deal with potential separation just at the time when that is the very last thing on your mind.

All I can say is, pre-nup or poat-nup, I’m sure glad I don’t have to think about the damn thing ever again.

[Gary_T]

@According to Pliny

If you had followed your own advice before posting it, you would realize that postnups are not legal in all states, including the one I care about.

Well, if someone had asked why you can’t have a postnuptial agreement in certain states, or in your particular state (and we still don’t know what state that is), I might have done that. But the question as asked implies that postnups are not allowed anywhere, and I answered it in that context.

The question is “Why not” There must be a reason.

To get the answer you’re looking for, a more helpful question would be “Why doesn’t the state of X recongnize postnuptial agreements?”

[According_to_Pliny]

@Gary T

Well, if someone had asked why you can’t have a postnuptial agreement in certain states, or in your particular state (and we still don’t know what state that is), I might have done that. But the question as asked implies that postnups are not allowed anywhere, and I answered it in that context.

To get the answer you’re looking for, a more helpful question would be “Why doesn’t the state of X recongnize postnuptial agreements?”

Fine. Have it your way. I’ll substitute the question worded just like you can understand it.

Now what’s the answer?

[Gfactor]

I’m not sure more than one or two states still don’t recognize them;

Ohio courts don’t recognize them at all – with an appeals court there declaring that a married couple “cannot make a contract that alters their legal relations.”

In Louisiana, a married couple must jointly petition a court to approve a post-nuptial, and the court must find that it serves their “best interests.”

A 1994 Minnesota law allows such agreements – but only in cases where each spouse has a net worth above $1.2 million and the couple remains married two years after signing it.

http://www.ncpa.org/pd/social/pd072199f.html

But the part about Minnesota is wrong:

Subd. 1a. Postnuptial contract. (a) Spouses who are legally married under the laws of this
state may enter into a postnuptial contract or settlement which is valid and enforceable if it:
(1) complies with the requirements for antenuptial contracts or settlements in this section
and in the law of this state, including, but not limited to, the requirement that it be procedurally
and substantively fair and equitable both at the time of its execution and at the time of its
enforcement; and
(2) complies with the requirements for postnuptial contracts or settlements in this section.
(b) A postnuptial contract or settlement that conforms with this section may determine all
matters that may be determined by an antenuptial contract or settlement under the law of this state,
except that a postnuptial contract or settlement may not determine the rights of any child of the
spouses to child support from either spouse or rights of child custody or parenting time.
(c) A postnuptial contract or settlement is valid and enforceable only if at the time of its
execution each spouse is represented by separate legal counsel.
(d) A postnuptial contract or settlement is presumed to be unenforceable if either party
commences an action for a legal separation or dissolution within two years of the date of its
execution, unless the spouse seeking to enforce the postnuptial contract or settlement can establish
that the postnuptial contract or settlement is fair and equitable.
(e) Nothing in this section shall impair the validity or enforceability of a contract, agreement,
or waiver which is entered into after marriage and which is described in chapter 524, article
2, part 2, further, a conveyance permitted by section 500.19 is not a postnuptial contract or
settlement under this section.

http://ros.leg.mn/bin/getpub.php?pubtype=STAT_CHAP_SEC&year=2006&section=519.11&keyword_type=exact

Ohio still apparently does not recognize them because of an old statute:

In Ohio, a husband and wife cannot by contract alter legal relations between them. R.C. 3103.06. Therefore, postnuptial agreements [*5] are generally held invalid. Logan v. Logan (Apr. 25, 1985), Cuyahoga App. Nos. 48833 and 48863, unreported. Accord In re Estate of Weber (1960), 170 Ohio St. 567, 167 N.E.2d 98; Brewsaugh v. Brewsaugh (1985), 23 Ohio Misc. 2d 19, 491 N.E.2d 748. There are two exceptions to this rule, because the courts recognize the validity of postnuptial agreements which are executed pursuant to separation and those that memorialize in writing oral antenuptial agreements. See R.C. 3103.06; Estate of Weber, supra. The agreements executed by the the husband and wife in the instant case do not come under either exception but fall within the prohibition of R.C. 3103.06.

*Burgin v. Burgin * 1987 Ohio App. LEXIS 8157.

There is a history of the policy against post-nups here: http://www.rbs2.com/dcontract.pdf (pdf p. 3)

[AskNott]

Oy. :smack: Somebody, I guess, has to do the required grumping about nuptual, nupital, and the correct nuptial. I wouldn’t even bother, except to segue to a lame joke.

It really should be spelled noptial, because there’s a lot more noping after the wedding. Nope, nope, nope. :rolleyes:

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My first unnecessary post of the day, that’s what it is.

[galt]

I make post-nuptual agreements all the time. “Ok, I’ll agree not to leave my socks in the living room if you’ll agree not to leave your empty yogurt containers in the sink.”

[ratatoskK]

I had one with my ex (before we divorced). It actually was helpful when we eventually divorced, because we had already discussed and agreed to how we divide our assets. Not because of any legality, just because we had come to an understanding.

Anyway, in Massachusetts, my attorney explained that a post-nup isn’t as enforceable as a pre-nup, and if it went to court a lot would depend on the discretion of the individual judge. (But that never happened.)

[According_to_Pliny]

Thanks for the cites Gfactor. I think they cover the answer more than I expected.

And thanks to those who reported on their personal experiences.