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Postnuptial agreements increase in popularity

Most people understand the concept of a prenuptial agreement. You and your intended discuss your financial situations and determine the best way to divide your assets in the event that the marriage doesn't work out. That's a simplistic definition, of course, since premarital contracts are much more versatile documents and can provide protection for you and your spouse beyond asset division in a divorce.

If you and your spouse married without the benefits of a prenuptial agreement, you may think you missed the boat. However, it is possible that a postnuptial agreement may be an appropriate planning tool if the circumstances in your marriage -- or your perception of such documents -- have changed.

What is the value of a postnup?

A postnuptial agreement isn't always an afterthought, but in some cases an engaged couple may have postponed drafting the document until time got away. Advocates of the protections a prenup affords believe it is a mistake to delay the preparation of such an agreement since postnuptial agreements present many more challenges in court than their pre-marriage counterparts.

Nevertheless, there are two main reasons why you may consider a postnuptial contract.

  • You hope to establish the same arrangements you would have if you had drafted a contract prior to the wedding. In other words, a postnup can settle matters of property division, debt management, responsibilities and obligations, and any other matter that a prenuptial can settle.
  • You could use the postnuptial agreement to negotiate the terms of a reconciliation in lieu of divorce. For example, if your spouse has cheated, you may agree to postpone a divorce if your spouse meets certain stipulations within the marriage.

In many cases, the reconciliation is not permanent, but the postnuptial agreement may place your spouse on his or her best behavior, at least for a while.

Postnuptial contracts are tricky

Postnuptial agreements are a relatively new idea because, until recent generations, married women were forbidden from entering into contracts with their husbands. Fortunately, laws have changed, although some states are slow to catch up. Efforts to create more standardized, nationwide laws governing prenuptial and postnuptial agreements haven't yet been successful.

For this reason, if you and your spouse have decided to draft such a contract, you will want to make sure it remains within the scope of Texas law and contains nothing that will cause a court to question its enforceability. An experienced Board-Certified expert family law attorney will have knowledge of state laws and can guide you in drafting your contract. In fact, you and your spouse may benefit from having individual counsel to advise you and protect your best interests.

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