Today, it is not very uncommon for marriages to end up in a divorce. In order to practice caution, therefore, many couples these days are entering into post-nuptial agreements. You may be familiar with pre-nuptial agreement, but may have not been aware post-nuptial agreements. However, these days, more and more couples are beginning to enter into post-nuptial agreements. If you are interested in entering into a post-nuptial agreement, but not sure if it is in your best interest, it is best to consult a family law attorney specializing in these matters. This article is written for educational purposes only and will provide a basic understanding about post-nuptial agreements.
Entering into a Post-Nuptial Agreement
What often triggers couple to enter into a post-nuptial agreement depends on a case-by-case basis. As anyone who is married will often tell you, once you get married, things start to change. Financial fortunes begin to improve or decline, spouses begin to come out of the so-called “honeymoon phase” as the marriage progresses, career paths change, and things just do not feel the same anymore, like they did before.
Majority of the times, spouses enter into a post-nuptial agreement as a result of major financial changes that start to become apparent during the course of the marriage. On the other hand, living with one another constantly, spouses begin to doubt their partner, thus becoming more inclined to enter into a post-nuptial agreement. Such dramatic changes begin to impact the marital estate.
Guidelines of Creating the Post-Nuptial Agreement
To have a valid agreement, courts do not require you to have entered into a pre-nuptial agreement beforehand. The Georgia courts in Sanders v. Colwell case determined the validity of post-nuptial agreements by analyzing the validity of the post-nuptial agreements under three factors:
- Was the agreement obtained through fraud, duress or mistake, or through misrepresentation or nondisclosure of material facts?
- Is the agreement unconscionable
- Have the facts and circumstances changed since the agreement was executed so as to make its enforcement unfair and unreasonable?
If the answer to these questions listed above is a no, then the court will enforce the post-nuptial agreement.
Advantages of Entering into a Post-Nuptial Agreement
Entering into post-nuptial agreements may not be in everyone’s best interest. Therefore, it is recommended to consult your local family law attorney prior to entering into one. However, there may be several reasons why spouses might benefit by entering into a post-nuptial agreement.
Circumstances Where a Post-Nuptial Agreement May be Advised
You are interested in protecting your initial investment in a business
If you have your own business, it is often hard to manage the business with the spouse as it could be challenging during a divorce settlement. By entering into a post-nuptial agreement, the process may run more smoothly and more efficiently. If, for example, your spouse inherits some money before getting married, and decides to use the money to pay for the initial cost of the business, then post-nuptial agreement can prove to certainly be beneficial. In the post-nuptial agreement, the spouse can indicate that although business is marital, in an event of your divorce, the spouse will be eligible to receive the initial investment money, which will constitute as separate property.
This is not your first marriage
If it is not your first marriage, then you may want to consider entering into Post-Nuptial agreement. By marrying a spouse who has children from the former marriage, entering into a post-nuptial agreement will prove to be beneficial. Children from former marriage will be protected, as they will be eligible to obtain some of the assets.
You have invaluable and sentimental property interests
By entering into a post-nuptial agreement, you can alleviate your fears of losing property that has an attached sentimental value. post-nuptial alleviates the fear that may possible arise as to losing the property that is a great value to you. Having purchased a property, which carries sentimental value to you, you would want to make certain that in an event of divorce, the property remains yours. This is why entering into post-nuptial agreement may be the right choice.
Disadvantages of Entering into a Post-Nuptial Agreement
Lack of trust in your partner to make the marriage work long-term
If you are thinking of entering into a post-nuptial agreement, it may imply to your spouse that you do not have a faith in your marriage working out for a long term. A basic foundation of marriage is trust and faith, and these essential foundations should be honored. By entering into an agreement after walking down the aisle, you are setting yourself up for a disaster by indirectly sending a wrong meaning. Therefore, you should really think about it before entering into post-nuptial agreement.
Post-nuptial agreements are subject to the court’s discretion
When you enter into a post-nuptial agreement, judge has the discretion to determine the validity and reasonableness of the document.
Risk of disagreement when it comes time to sign the post-nuptial agreement
One of the major disadvantages of entering into a post-nuptial agreement is dealing with the money at the time when the marriage may not be going well. Even if the marriage is going well, the bringing up of the idea of a post-nuptial agreement may put stress on the marriage. Spouses, after marriage, are not always in an agreement when it comes to determining how the money and debts should be apportioned. However, to stay away from these doubts and problems, it is highly recommended that parties enter into a pre-nuptial agreements, as opposed to a post-nuptial agreements when possible. This is because it is generally easier for parties to reach an agreement regarding money and debts prior to the parties entering into a marriage.
Similar to the pre-nuptial agreement, it is generally advised that in order to obtain an adequate and fair representation, you and your spouse should seek independent counsel. Post-nuptial agreements can become very complicated and difficult to comprehend; therefore it is advised to seek professional help.
If you are contemplating a post or pre-nuptial agreement, call us today at 770-609-1247 to determine what options are best for your situation. Our experienced divorce and family law attorneys are in negotiating pre-nuptial, post-nuptial, separation, custody, support and divorce agreements.