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What people can and cannot address in a postnuptial agreement

Postnuptial agreements are marital contracts drafted and signed by individuals already committed to one another in marriage. Oftentimes, postnuptial agreements address many of the same issues that prenuptial agreements do. That means they are vulnerable to many of the same mistakes that people make when drafting prenuptial agreements.

There are certain matters that spouses can address with one another in a postnuptial agreement and other issues that could prove unenforceable or might even invalidate the agreement altogether.

Spouses can address the end of a marriage

The most common inclusions in postnuptial agreements are clear terms for practical and financial matters when the marriage ends in the future. Spouses can discuss what should become of their marital resources if they divorce and what may happen after either spouse dies.

Spouses could agree to treat certain assets as separate property. They can also set certain terms regarding the division of certain assets. Spouses can even address spousal support or alimony. In some cases, they may include certain clauses intended to deter or penalize specific types of misconduct, including infidelity or gambling.

What people should not include in postnuptial agreements

While it is possible for people to address specific concerns about misconduct that may have already affected the marriage, a postnuptial agreement should not seek to micromanage the details of marital life. Terms related to marital intimacy or even weight gain are likely inappropriate and unenforceable.

Additionally, married couples generally cannot agree with each other to forgo child support in the event of a divorce. Child support is financial support provided to the children, not to the custodial parent. While parents generally do have the authority to make financial decisions on behalf of their children, they cannot proactively give up the right to seek financial support from the other parent.

Best practices for postnuptial agreements also include having separate legal representation for both spouses to ensure that they understand the terms of the document they signed and avoiding wildly uneven terms that only benefit one spouse, which a judge might determine are unconscionable.

Those who understand what a postnuptial agreement should include and should not contain can draft documents that address their concerns and that are likely to hold up under scrutiny in family court. Learning more about marital agreements can benefit those preparing for divorce or trying to work on a struggling marriage.

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