Postnuptial Agreement

Once married, spouses occupy a position of trust that imposes a higher duty of fair dealing than that of arm's-length business partners. This fiduciary standard means that any attempt to hide assets, undervalue business interests or misrepresent future earnings will likely result in the entire postnuptial agreement being declared void. To survive a legal challenge, the document must reflect a "full and fair" disclosure of the marital and separate estates.

In many cases, the timing of a postnuptial agreement is suspicious—often following an act of infidelity or a period of intense marital strife. If a spouse can prove they signed the document under the threat of divorce or while in a vulnerable emotional state, a judge may strike it down. SJKP LLP ensures that every signing is conducted under conditions that prove the agreement was a voluntary exercise of free will, rather than a desperate attempt to save a failing relationship.

A "one-lawyer" postnuptial agreement is almost never enforceable. For the contract to hold weight in court, each spouse must have their own independent attorney to review the terms and advise them of the rights they are waiving. A failure to secure separate counsel creates an immediate presumption of unfairness that the opposing side will exploit to invalidate the agreement when the stakes are at their highest.

For entrepreneurs, a postnuptial agreement is an essential tool for business continuity. It can prevent a former spouse from gaining a seat on the board of directors or forced liquidation of shares during a divorce. By defining the business and its future appreciation as separate property, you ensure that the company remains an operational asset rather than a marital bargaining chip.

While inheritances are generally considered separate property, using those funds to renovate a family home or depositing them into a joint account can lead to the loss of their protected status. A post-marital contract explicitly identifies these funds and dictates that they remain the sole property of the recipient spouse, regardless of how they are used during the marriage. This prevents a family legacy from being redirected to a former spouse’s estate.

Postnuptial agreements are not solely about protecting wealth; they are also about preventing the involuntary assumption of a spouse’s liabilities. If one spouse engages in high-risk investments or accumulates significant personal debt, the agreement can stipulate that these obligations remain the sole responsibility of the individual who incurred them. This protects the innocent spouse’s credit and financial future from the partner’s fiscal mismanagement.

Yes, but the waiver must be clear, unequivocal and supported by adequate consideration. However, the court retains the authority to override this waiver if the spouse seeking support would be forced to rely on state assistance. To avoid this, we often structure agreements with "sliding scale" support provisions that account for the length of the marriage and the actual financial needs of the parties, making the contract much harder to challenge.

Instead of a total waiver, many couples use the agreement to set a specific formula for alimony payment. This might include a fixed monthly amount or a percentage of income with a definitive end date. By removing the "discretionary" element from the court, the parties gain certainty and avoid the six-figure legal fees associated with litigating spousal support in a contested divorce.

While "no-fault" divorce is the standard in the United States, some postnuptial agreements include financial penalties for specific behaviors, such as infidelity. These "lifestyle clauses" are controversial and their enforceability varies wildly by jurisdiction. Some judges view them as contrary to public policy, while others see them as a valid part of a contract. We craft these provisions with extreme care to ensure they are framed as financial adjustments rather than punitive moral judgments.

The most common reason for a postnuptial agreement to be set aside is the failure to attach a comprehensive list of assets and liabilities. This disclosure must be exhaustive, including everything from real estate and retirement accounts to cryptocurrency and intellectual property. If a spouse "forgets" to mention a significant asset, the other spouse can claim they were misled, effectively tanking the entire agreement.

In general contract law, there must be an exchange of value—consideration—for a contract to be valid. In a postnuptial setting, simply "staying married" is often insufficient consideration. The agreement should ideally include a specific transfer of assets or a modification of legal rights that provides a tangible benefit to both parties. Without this, the contract may be seen as a one-sided gift rather than a binding agreement.

A postnuptial agreement must be signed voluntarily and typically must be acknowledged by a notary public. In some states, the requirements are even more stringent, involving witnesses or a specific cooling-off period before the document becomes final. Any deviation from these formalities provides a future divorce attorney with the ammunition they need to have the agreement thrown out of court.